Texas Abortion Law Protests
Abortion rights supporters gather to protest Texas SB 8 in front of Edinburg City Hall on Wednesday, Sept. 1, 2021, in Edinburg, Texas. (Joel Martinez/The Monitor via AP)

In a stunning turn of events, the Supreme Court last week allowed a Texas law that bans virtually all abortions to take effect. The law, known as SB 8, was pushed through by a Republican-controlled legislature, signed by a Republican governor, and buttressed by federal judges who were appointed by Republican presidents. This is not the first time a state has passed a plainly unconstitutional abortion law, but it is the first time such a law has not been blocked by the courts. Now, Texas will be our first look at a post-Roe world, in which women’s autonomy is controlled by the misogynistic or fundamentalist whims of politicians.

While SB 8 will have a deleterious effect on all women, pregnant teens will suffer special harms. They already must jump through insane hoops to obtain an abortion, which puts most, if not all, of them beyond six weeks of pregnancy. And they tend to lack the freedom of movement and economic resources to seek abortion care in another state.

SB 8 bans abortion once embryonic cardiac activity is detected, approximately six weeks from the first day of a woman’s last menstrual period. Designed by lawmakers to evade constitutional review, the statute cannot be enforced directly by the state. Rather, it can only be enforced through a private right of action that allows any person to sue someone who performs an abortion after the new law’s cut-off point—or anyone who aids and abets the procedure. Upon proof of a violation, the court must award “an amount not less than $10,000” per defendant, per abortion. There is no limit on the number of people who can be sued for their connection to a single abortion—nor any limit on the definition of what it means to “aid and abet” one. Indeed, as soon as the law took effect, medical providers across the state stopped providing abortions except those not covered by the ban.

The practical effect of this law is the intended one: Most people seeking an abortion will not be able to legally get one in Texas. Most pregnancies are suspected—and detectable—only on the first day of a missed period, about two weeks after conception. Even a woman with an extremely regular, 28-day menstrual cycle (and thus more likely to suspect a pregnancy on that first day) would have only two weeks to take a pregnancy test, make the decision to terminate, gather the money necessary to pay for the procedure (Texas lawmakers have also banned private insurance coverage of abortion and public funding through Medicaid), make an appointment, and complete the abortion.

The Texas abortion laws already in place are burdensome: Women must have two appointments with the same doctor, no less than 24 hours apart. The first appointment must include a sonogram, an effort to detect fetal cardiac activity, and “informed consent” counseling that includes mandatory dissemination of a state-published pamphlet that is chock full of misleading, if not flatly false, statements about the risks of abortion. The second appointment is often delayed because the same doctor must be available for both appointments, the clinic must have space in the schedule, and the patient must be able to work around her own work and family obligations. This process is required even for medication abortion, which consists of taking one pill at the clinic and then a second at home the next day. Telemedicine for the counseling appointment is prohibited.

Suffice it to say, abortion care was already hard to obtain in Texas. With the addition of the ban on abortions after six weeks, it will be virtually impossible. But it will be even worse for pregnant minors. Because of their status under the law, the realities of simply being a teenager, and the oppressive process in place for teenagers in Texas to terminate a pregnancy, the new law essentially runs out the clock for them to get an abortion if they need one.

Abortion, like other aspects of the constitutional right to privacy, is protected by a framework designed for adults with full autonomy. The Supreme Court has held that a pregnant minor does have a constitutional right to seek a pre-viability abortion—just as a pregnant adult does—but that the state may impose special protections rooted in concerns about the ability of minors to make informed health care decisions and in deference to the right of parents to make health care decisions for their children.

The constitutional compromise, established in Planned Parenthood v. Danforth (1976) and Bellotti v. Baird (1979), is that if a state chooses to require parental notification or consent for a minor’s abortion, it must also provide a mechanism for the minor to bypass her parents and seek permission from a court instead. The procedure, known as “judicial bypass,” must comply with very particular standards set out by the Supreme Court: It must be expeditious and confidential; and the judge must allow the minor to make her own abortion decision if she is mature and well informed enough to make the decision, and if her best interests would be served by having an abortion.

Under Texas law, a pregnant minor cannot consent to her own abortion. And the grossly ironic reason she may find herself with an unwanted pregnancy is because of other Texas laws: For instance, minors cannot consent to their own contraceptive care, even if they have already had a child. The state’s parental involvement law, enacted in 1999, mandates that a pregnant minor either bring a parent in person or a signed, notarized consent form, or the minor must present a court order showing that a judge has granted her a bypass. Imagine a pregnant minor who does not feel comfortable or safe disclosing the pregnancy to her parents—or a pregnant minor in foster care or immigrant detention who does not have anyone legally capable of consenting to abortion care on their behalf.

The judicial bypass process, as it operates in Texas, would make it virtually impossible for a pregnant minor to obtain an abortion before the deadline. The teenager must file a petition in the county where she lives unless it has fewer than 10,000 people (in which case she has some venue options). A judge is then appointed to her case and has five business days to schedule a hearing and rule on her petition. In some counties, the local judges refuse to hear bypass cases because they oppose abortion—and there are delays even in finding one to hold the hearing. The judge must then appoint a lawyer and a separate person as a guardian ad litem, someone who is supposed to look out for the minor’s best interests but who may be handpicked by the judge because of anti-abortion views; and the minor must appear at the hearing in person.

At the hearing, the minor must prove that she satisfies at least one of the standards set forth by the Supreme Court. Most minors will have had their first clinic appointment, sonogram, and counseling before the hearing—and they will be asked to testify, in great detail, about how they got pregnant, whether they were using any birth control, and whether they looked at the sonogram images or heard a fetal heartbeat.

The teenager will also be asked to describe the abortion procedure and recite the risks of abortion. A pregnant minor is expected to show that she is well informed by demonstrating her knowledge of the contents of the official state pamphlet, A Woman’s Right to Know, which medical experts agree is misleading. It manipulates the reader into believing that having an abortion increases a woman’s risk of developing breast cancer and erroneously suggests that abortion might impair her future fertility. It also lists death as the first risk, even though Texas’s own data shows that no Texas resident has died from an abortion in the last five years there have been no deaths in recent years from abortion (with more than 50,000 abortion procedures per year), while the state’s death rate from pregnancy-related causes is 34.5 per 100,000 live births.

If the judge grants her petition, the minor can take the court order to the clinic as a substitute for parental consent. If the judge denies her petition, she can appeal, and another five-day clock starts from the date her lawyer files a notice of appeal. (If a judge just never acts on her petition, as sometimes happens, the petition is deemed denied.) Then, if the appellate court reverses the denial, she can obtain the court order necessary to obtain the abortion. If not, she can appeal again to the Texas Supreme Court, triggering another clock and another delay.

Simple math makes clear that the legal prerequisites will not be satisfied very often for pregnant minors subject to the six-week ban. (Minors are already even less likely than adult women to have regular, predictable menstrual cycles and thus less likely to know when to suspect pregnancy.) Even without this ban, minors are subject to the torturous determinations of the state legislators who crafted the bypass law, the judges who preside over bypass hearings, and the attorneys and guardians ad litem who may be involved in their cases. Worse yet, the hearings often reinforce stereotypical attitudes about girls and their sexuality—and force them into a situation where they have to beg an authority figure for autonomy while promising to be a “good girl” going forward.

The men—and they are mostly men—who crafted the system in Texas have not paid any consideration for the consequences for a minor forced to give birth against her will. Yet, as the Supreme Court recognized in the landmark 1992 case Planned Parenthood v. Casey—which the Roberts Court appears prepared to toss into the trash can of history—the “ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

In cases involving the reproductive rights of minors, advocates have pushed hard—often without success—to get courts also to recognize the connection between controlling reproduction and equal educational opportunity. Under a law like SB 8, even more young women will have their futures derailed by forced birth while the men who impregnated them go unscathed.

While adult women in Texas will be hugely burdened by SB 8, the most common escape valve—traveling out of state for care—is rarely an option for minors. Teens already struggle to attend judicial bypass hearings and clinic appointments for abortion care. Even with financial assistance, the logistical barriers of out-of-state travel are likely prohibitive, especially for a teen trying to keep the pregnancy and abortion confidential from parents and school officials. As with other abortion restrictions, the harshest effects will be experienced by lower-income women and racial minorities. Youth of color are disproportionately represented among the pregnant minors who seek a judicial bypass. The new law will only exacerbate an unworkable system with harmful effects on our state’s most vulnerable populations.

Texas already has one of the highest teen birthrates in the nation, as well as one of the highest repeat teen pregnancy rates. SB 8 will push those numbers even higher, forcing pregnant minors to give birth in a state that provides among the fewest supports and protections for babies and mothers.

Texas women already face high rates of maternal mortality, the highest number and percentage of uninsured residents, the lowest income cap for Medicaid eligibility (and no Medicaid expansion), and the widespread closure of hospitals in rural areas. They will now face the additional risks posed by unwanted (and sometimes unsafe) pregnancy and may be driven to abortions without adequate medical supervision that put their health and lives in jeopardy.

The GOP has been pushing for decades to strip women of the right to abortion, and much ink has been spilled on what a post-Roe world will look like. We are about to see it in Texas, and it is every bit as scary as we imagined—and maybe even more so.

Joanna L. Grossman

Follow Joanna L. on Twitter @JoannaGrossman. Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law and Professor of Law at SMU Dedman School of Law. She is also a licensed attorney in Texas who represents pregnant minors.