Texas and Mississippi laws are among many of the measures enacted by Republican-controlled state legislatures designed to test the durability of Roe and Planned Parenthood v. Casey, the 1992 decision that confirmed Roe’s fundamental involvement and said states may not impose an “undue burden” on the right to abortion before fetal viability.
Lawmakers behind the various state measures are betting that the recent turn of the right to the right of the Supreme Court will lead it to uphold the new laws. The court now includes three members appointed by President Donald J. Trump, who had pledged to appoint judges prepared to overturn Roe v. Wade.
One of them, Judge Brett M. Kavanaugh, replaced Judge Anthony M. Kennedy, a cautious advocate for abortion rights. Another, Judge Amy Coney Barrett, replaced Judge Ruth Bader Ginsburg, who saw access to abortion as essential to women’s autonomy and equality.
Senate Bill 8 was passed in May by Republican Gov. Greg Abbott. It prohibits doctors from performing abortions if a fetal heartbeat is detected.
This activity begins around six weeks, even before many women are aware that they are pregnant.
“This law basically bans abortions and codifies bullying,” said Kamyon Conner, executive director of the Texas Equal Access Fund, which provides financial support to people seeking abortions. “Anti-abortion politicians empower extremists to sue to harass and intimidate anyone who helps someone abort.”
Texas abortion providers filed a lawsuit in federal court in July, appointing, among others, all judges of the courts of first instance and clerks of Texas county courts.
Defendants responded that they were not suitable parties and, in any event, were immune from being sued. “Applicants have no right to sue a state judge or court clerk because a private party can file a lawsuit in their court,” Republican Texas Attorney General Ken Paxton wrote in a brief filed Tuesday.