Even the most ardent anti-abortion activists were dubious as the bill worked through the Legislature.
“We had concerns that SB 8 would not survive a federal court challenge even back during the spring,” said Joe Pojman, executive director of Texas Alliance for Life, who said he privately urged key Texas lawmakers to think twice.
Roe is a “terrible precedent” that “ties the hands of the Legislature from protecting unborn babies before the point of viability,” Pojman said, but it is, unequivocally, the law of the land unless the Supreme Court says otherwise.
Will Roe fall?
Until the Trump era, there was no question the court would reject a 15-week ban like Mississippi’s.
But with a 6-3 conservative majority now a year old, the judicial landscape has never been more favorable for those attacking Roe.
It takes four of nine justices to grant a hearing. It’s unclear if there’s a fifth willing to overturn Roe.
“I’ve been involved in the pro-life movement for 34 years and my hopes have been dashed several times,” said Pojman. “But this time I truly am hopeful that Roe could be substantially modified or overturned.”
Abortion rights advocates are pinning their hopes on Chief Justice John Roberts.
Appointed by Republican George W. Bush, Roberts has disappointed conservatives by regularly choosing precedent over ideology when those come into conflict.
On Sept. 1, when the five other conservatives allowed SB 8 to take effect, Roberts dissented.
The law is so “unprecedented” that it would be wiser to freeze enforcement “so that the courts may consider whether a state can avoid responsibility for its laws in such a manner,” he wrote.
Two of the three joined the chief justice’s dissent.
Justice Sonia Sotomayor, writing separately, chastised Texas lawmakers for showing such disregard for precedent and judicial review.
“To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not,” she wrote. “… In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”
Texas’ argument is that there’s no one for anyone to sue to block the law, and the federal government can’t claim standing just because it believes private parties would suffer.
The Justice Department’s response: “Having chosen an unprecedented scheme in a deliberate effort to thwart ordinary judicial review, Texas should not be heard to complain when the federal courts exercise remedial authorities that are usually unnecessary.”
A ruling in the Texas case could come quickly, maybe even within hours.
The high court could overturn SB 8 outright, or kick it back to lower courts with guidance on how to sort it out.
As for Dobbs, like most big cases the ruling will probably come in late June at the end of the court’s term.
When the dust settles, Texas and other red states could be free to ban virtually all abortions, because if a majority of justices are inclined to overturn Roe, they might very well go all the way, advocates and legal experts say.
“Any point before birth, other than fertilization, is arbitrary,” Pojman said.
Texas is one of a dozen states, mostly in the South, with laws on the books to ban abortion entirely if and when Roe falls: House Bill 1280, which makes no exception for rape or incest. Doctors would face life in prison or $100,000 fines for violating the ban.
Abbott signed it in June, though public support for such a complete ban is low.
Only 13% of Texans polled early this year by the Texas Politics Project at the University of Texas said they want abortion outlawed. Only 21% of Republicans said abortion should never be permitted.
But, said James Henson, director of the UT project, “A draconian abortion law has a lot of value in a Republican primary, however much ambivalence there may be in a general election.”