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After leaked SCOTUS draft, abortion-rights supporters brace for total ban in Texas

Demonstrators in Austin protest on Sept. 1 against the Texas law that blocks abortions about six weeks into gestation.
Jay Janner
Austin American-Statesman via AP
Demonstrators in Austin protest on Sept. 1 against the Texas law that blocks abortions about six weeks into gestation.

A leaked draft opinion by the United States Supreme Court on the constitutionality of abortion has abortion-rights advocates staring down what they now think is inevitable: the near-erosion of legal access to the procedure in Texas.

A majority of the justices reportedly voted to overturn Roe v. Wade, the landmark 1973 opinion that established the right to abortion, according to a leaked draft opinion published by Politico late Monday, NPR reported.

In the near 100-page report, Supreme Court Justice Samuel Alito, a member of the high court’s conservative bloc, wrote that Roe was wrongly decided, and the issue of abortion should be decided by politicians, not courts, NPR reported. 

Chief Justice John Roberts confirmed the leaked draft opinion’s authenticity Tuesday morning, but said the ultimate decision is pending.

“Although the document described in yesterday’s report is authentic it does not represent a decision by the court or a final position of any member on the issues in the case,” Roberts said. The chief justice added that he has ordered an investigation into the leak.

What this would mean for Texas

If Roe v. Wade is reversed, that decision would shift the power to decide on the legality of abortion from the federal level to the states, said Elizabeth Sepper, a professor of law and scholar of religious liberty, health law, and equality at the University of Texas at Austin.

“The draft opinion said that in order for the constitution to protect abortion, abortion has to be a right deeply rooted in our history and tradition,” Sepper told The Texas Standard Tuesday. “The court said it’s returning the issue back to the states to make their own decisions.”

In Texas, that could mean a near total ban on abortion. Texas is one of more than a dozen states that have passed a so-called trigger law that would further restrict abortion in the aftermath of a Roe v Wade reversal.

“If Roe v. Wade is overturned, access to safe and legal abortion in this state is likely to be banned or eliminated entirely,” Planned Parenthood wrote about Texas in a state-by-state breakdown of current and future state laws.

Texas’ version of a trigger law, House bill 1280, would make it a second-degree felony “for a person who knowingly performs, induces, or attempts an abortion” according to the bill analysis. The penalty would increase to a first-degree infraction “if the unborn child dies as a result of the offense.”

The legislation passed in 2021 and makes no exceptions for rape or incest and adds a fine of at least $100,000 for each offense. It would take effect 30 days after the U.S. Supreme Court officially overturned Roe v Wade or 30 days after the issuance of a separate ruling that has the same effect.

Seema Mohapatra, a Murray visiting professor of law at Southern Methodist University, said the Texas trigger law could have a disproportionate impact on some pregnant people.

“Practically, people who are seeking an abortion in Texas will have very little options especially if they are not able to travel to a faraway state,” she said on Texas Standard Tuesday. “It really does affect peoples’ lives, and when we look at the fact that forced pregnancy really has different outcomes depending on what race you are, we know that black women are much more likely to die during pregnancy than other women. This has differential impact on people of color and poor people and the court opinion really ignores that.”

Even before the expected gutting of Roe V. Wade, Texas already has one of the most restrictive abortion laws on the books. Senate bill 8 is the so-called Heartbeat Act, which state lawmakers also passed last year. It effectively bans abortion after about six weeks of pregnancy before most people know they are pregnant. The law also allows for private citizens to take to court people who perform abortions and collect $10,000 and legal fees from whom they successfully sue.

Since the law has taken effect, more than 1,400 people have traveled out of state to receive abortions, KUT reported in March.

“Between September and December 2021, an average of 1,391 Texans per month obtained abortions at these out-of-state facilities, with monthly totals ranging from 1,330 to 1,485,” researchers at the University of Texas at Austin’s Texas Policy Evaluation Project wrote. Most of the patients went to Oklahoma or New Mexico.

However, that access is likely to change soon after Oklahoma passed its version of the Texas law and has also passed its own trigger laws, according to the Associated Press. The legislation that mirrors Texas’ six-week ban is awaiting the governor’s signature. That could leave New Mexico as the last neighboring state where Texas women seeking an abortion could to travel to for the procedure. The state will likely still provide access to “safe and legal” abortions even if Roe v. Wade is overturned, Planned Parenthood states on its tracker.

Texas responds to the draft decision

Reaction to news of the leaked draft was swift and predictable. Texas Attorney General Ken Paxton said in a tweet that he hoped the U.S. Supreme Court would return “the question of abortion [to] where it belongs: the states.”

“I’ll [continue] to ensure that TX protects the unborn & pray for the end of abortion across our nation,” he added.

State Rep. Jeff Leach, R-Plano, tweeted: “If Roe v Wade is overturned - & I pray it is - may we Christians rise to the moment. Standing for innocent life.”

Progress Texas, which advocates for progressive policies in the state, warned that the erosion of guaranteed rights will likely continue.

“The Supreme Court’s conservative justices are planning to overturn nearly 50 years of precedent guaranteeing the right to abortion, let that sink in,” said Diana Gómez, the advocacy director at Progress Texas, said in a statement. “Texas is already living in a post-Roe reality, but this opinion draft confirms where our nation is headed. No right is safe under this Court or under any institution controlled by conservative politicians.”

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Got a tip? Email Julián Aguilar at jaguilar@kera.org.You can follow Julián on Twitter @nachoaguilar.

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Julián Aguilar | The Texas Newsroom