Content warning: The following piece contains mentions of rape and sexual assault. Reader discretion is advised.
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The Supreme Court ruled that lawsuits challenging the Texas abortion ban — also known as Senate Bill 8 — may continue; however, the law will remain in effect. S.B 8 bans all abortions after 6 weeks of pregnancy and holds no exception for rape or incest. The uniqueness of this law is that it allows citizens to sue anyone who “aids or abets” an abortion for at least $10,000. This makes abortion providers virtually unable to sue the state and block the law. This issue was taken to the supreme court and ruled 8-1 that challengers can sue members of the medical board but not state court judges or clerks. While this may seem like a win for abortion rights activists, it’s nowhere near the systematic support needed to repeal the law because members of the medical board hold no power to repeal any laws.
Meanwhile, the current Mississippi court case on abortion, Dobbs v. Jackson Women’s Health Organization, heard oral arguments on December 1. This will be the first time the Supreme Court will rule on the constitutionality of abortion since the 1973 landmark case Roe v. Wade. Pro-choice activists fear that the 6-3 conservative majority on the Supreme Court will overturn Roe. If either of these cases rules in favor of the state, Roe will be appealed in the constitution, and any laws regarding abortion will be left to individual state discretion. As of right now, 22 states have laws that would heavily restrict abortion that would take effect immediately if Roe were overturned. 12 of those states ban all or most abortions, and four have passed a constitutional amendment that does not protect the right to abortion in any situation.
Currently, the most important question the Supreme Court is considering is in relation to the viability of a fetus. Roe protects all abortions until the end of the second trimester (week 26 of pregnancy). Both the Texas and Mississippi laws attempt to move the line of viability to an earlier point in pregnancy. While some believe that a complete appeal of Roe is unlikely, the probability of dramatic changes in the law is.
So, what does this mean?
The Texas court case will proceed in a lower court while S.B 8 remains in effect. The Mississippi case will also proceed, but a decision is not expected until June 2022. Both sides on the abortion argument had small victories from the supreme court ruling but are just the beginning of a very long and momentous battle.