How Texas’ near-ban on abortions could impact Wisconsin

A law that bans nearly all abortions in the state of Texas was allowed to take effect Wednesday by the U.S. Supreme Court, causing an immediate impact on women’s health care in that state by forcing clinics to turn away women seeking an abortion.

“We woke up today to a new reality in America – a reality where abortion can be banned while the Supreme Court stands idly by,” said former Wisconsin Sen. Russ Feingold, now president of the American Constitution Society, in a statement. “No longer is the Supreme Court guided by precedent. This Court, with its two stolen seats, is instead guided by politics, anti-choice ideology, and the bidding of the billionaires who packed it.”

Feingold added: “Reproductive rights have never been more in peril than they are right now.”

Texas law SB8 violates Supreme Court precedent and was put forward, many on both sides of the abortion debate agree, to provide a path for the Supreme Court to overturn Roe v. Wade.

The Court’s decision to decline to enjoin Texas law SB8, when asked to do so by pro-choice groups, will have the effect of outlawing most abortions in that state, plus it sends the message that the Court, which has swung to the right after appointments by former President Donald Trump, is likely amenable to overturning abortion rights guaranteed under Roe v. Wade and Casey v. Planned Parenthood.

After years of Republican state-level policy that has chipped away at abortion care and added numerous hurdles to obtaining an abortion — including many that passed in Wisconsin — the new Texas law is now the most draconian in the nation. It bans abortions as early as five to six weeks from when fetal cardiac activity can be detected with no exception for rape or incest. Medical emergencies are the only exception the law permits.

In addition to banning abortions before many women know they are pregnant, the law contains a twist that turns private citizens into bounty hunters and awards $10,000 to anyone who successfully sues a person for providing an abortion or for assisting someone who gets an abortion. Even an Uber driver taking a person to the clinic could be sued.

That clause has a purpose beyond the reward for vigilantism: It makes it difficult to block the law from taking effect or tying it up in court. Normally a provider or pro-choice group would sue state officials, such as the attorney general, to stop the law from being enforced. While legal opinions differ, the authors’ intent was to get around this by taking enforcement responsibility away from public officials. Because any private citizen can take action, providers have to sit and wait to be sued. 

That legal strategy might be copied in other states that have passed “heart beat bills” but been stopped by courts from implementing them.

“By allowing this law to stand, SCOTUS has sent a clear message that women and pregnant people are no longer full citizens entitled to bodily autonomy or medical privacy,” said Sen. Kelda Roys (D-Madison), the former executive director of NARAL Wisconsin. She gave a personal take on Twitter, saying that as an 8-month pregnant woman she feels she was just told she isn’t a person. She added this: “I’ve been called hysterical/a liar for saying abortion rights could easily end in this country. It feels terrible to be proven right.”

Roys emphasized that Wisconsin women are particularly vulnerable because if Roe is overturned — which is widely seen as the goal of the Texas law — Wisconsin still has an archaic 1849 law on the books that criminalizes abortion and is not enforced only because of  Roe v. Wade.

Planned Parenthood Advocates of Wisconsin made clear that for now, there is no change for women in the Badger State: “Our health centers are open. Abortion remains safe and legal in Wisconsin.”

The Texas law is also an attack on medicine that will discourage doctors and other clinicians from practicing in Texas, said Dr. Maureen Phipps, CEO of the American College of Obstetricians and Gynecologists.

“By allowing third-party lawsuits against clinicians, by virtually banning all abortions, and by curtailing the sharing of information and support related to access to vital women’s health care, Texas’s new law creates a coercive environment for patients and clinicians across the spectrum of care and from all corners of the state,” she said in a statement. “By creating a pathway for litigation to be used as intimidation, SB8 will dissuade clinicians in the state of Texas from providing patients with the medical care that they need, and will clearly violate the patient-physician relationship.”

The law, providers say, is also likely to result in clinic closure.

After Texas Republican Gov. Greg Abbott signed the bill into law on May 19, the Texas Policy Evaluation Project at the University of Texas at Austin put out a July research brief that estimated at least 85% or more of past abortions would not have been permitted under the measure. Due to other laws and clinic closures, there is frequently a significant waiting time to obtain abortion care and many women do not know that they are pregnant that early, the brief points out. 

President Joe Biden, in his statement on the law taking effect, said the “extreme” Texas law “blatantly violates” the constitutional right established under Roe v. Wade.

“The Texas law will significantly impair women’s access to the health care they need, particularly for communities of color and individuals with low incomes,” Biden stated. “And, outrageously, it deputizes private citizens to bring lawsuits against anyone who they believe has helped another person get an abortion, which might even include family members, health care workers, front desk staff at a health care clinic, or strangers with no connection to the individual.

Wisconsin state and federal legislators on the Republican side remained silent in the immediate aftermath of the ban taking effect. But Democratic lawmakers took to Twitter.

Wisconsin Democratic Congresswoman Gwen Moore called out the legislators in Texas who passed the bill on other life-saving measures they have rejected.

“Republicans aren’t pro-life, they’re pro-forced birth,” Moore tweeted. “The same lawmakers supporting this Texas bill refuse to expand Medicaid, support any COVID precautions, and oppose extending unemployment relief for struggling Americans. What they really seek is control over women’s bodies. No politician should be allowed to take away a woman’s freedom to make her own health care decisions. This fight isn’t over.”

Also reacting via Twitter was U.S. Sen. Tammy Baldwin (D-Wis.): “SCOTUS has allowed Texas’s extreme abortion ban to take effect—dramatically restricting reproductive rights & threatening doctors who provide essential care. We won’t let this stand. Everyone deserves to make their own decisions about their health & future.” 

And U.S. Rep. Mark Pocan (D-Wis.) called on Congress to act. “This abortion ban is more than an assault on women’s reproductive freedom in Texas,” said Pocan. “It’s part of a concerted effort to strip every woman of the constitutional right to control her own healthcare decisions. If the Supreme Court won’t defend constitutional rights, Congress must.”

“Here is a hill I will die on,” declared Rep. Lee Snodgrass (D-Appleton). “Abortion is healthcare and reproductive rights, including the decision to carry or not carry a pregnancy to term, is a fundamental right for people who get pregnant. Body autonomy is a human rights issue.

Sen. LaTonya Johnson (D-Milwaukee) kept her reply to Planned Parenthood short and to the point: “It’s time to mess with Texas.”