Texas continues to have some of the most extreme anti-abortion laws in the country, passing two laws creating near-total bans on abortion in 2021: the 6-week ban enforced by private lawsuits – sometimes called the “bounty hunter” law – and the trigger law that went into effect after the Supreme Court overturned Roe. The trigger law bans abortion from the moment of conception with no exception for rape or incest. The only exceptions are for the life or physical health of the parent.
Unfortunately, the life and physical health exceptions exist in name only. In the two years since Texas’ trigger law banned abortion from the moment of conception, there have been multiple stories of women denied treatment until they were on the verge of death. At least two women were refused treatment until after their ectopic pregnancies caused permanent damage, threatening their ability to have children in the future.
Ectopic pregnancies are the leading cause of death for pregnant people in the first trimester and are exactly the sort of health risk that should be exempt from Texas’ abortion ban according to legal experts. Even so, between the risk of criminal charges and civil lawsuits, doctors struggle to know when exactly they are safe to provide abortion care to pregnant people in Texas.
Senator Ted Cruz (R-TX), who opposes exemptions for rape or incest and said he agreed with his state’s bans after the Dobbs decision, has refused to comment on what women in Texas are going through.
While the Texas legislature has not passed new laws regarding abortion access in the state, elected officials have tried to attack reproductive rights in other ways. Attorney General Ken Paxton has challenged federal protections for emergency room doctors providing abortions, Paxton and Texas Representatives have worked to ban access to mifepristone nationwide, and city and county officials in Texas have passed ordinances attacking the constitutional right to travel.
When the Biden Administration tried to protect doctors who provide emergency abortion care to save the lives of pregnant people, Paxton sued to make sure it didn’t apply in his state – and won.
Paxton also joined a multi-state letter to the Food and Drug Administration criticizing the updated regulations on mifepristone, commonly known as the abortion pill, which were based on decades of research.
And while the abortion pill was already banned in Texas, thirteen Texas Representatives signed on to a congressional amicus brief opposing mifepristone in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, which sought to overturn FDA approval of the medication for abortions, which would ban the abortion pill nationwide. Paxton joined a different amicus brief opposing mifepristone in the same case. These extreme positions are echoed in Project 2025, which also seeks a nationwide ban on the abortion pill.
City and county officials in Texas have also been working to attack abortion access, using a legal workaround pioneered by the Texas bounty hunter law to try and curtail pregnant people’s right to travel.
Several municipal governments in Texas have passed “abortion trafficking” ordinances that would allow any citizen to sue someone they believed helped a pregnant person get an abortion, including by driving the pregnant person across state lines. These laws challenge the well-established constitutional right to travel, but are effectively immune from legal challenges because of how they are written.
SB 8, the Texas bounty hunter law that effectively banned abortion after 6-weeks before Roe was overturned was written specifically to avoid lawsuits. You can’t sue a state, so you sue the state official who is in charge of enforcing a law. For example, in the case of abortion bans, people would sue the attorney general to prevent them from prosecuting people under the law. SB 8 explicitly says that state officials can’t enforce the 6-week ban.
Instead, private citizens are allowed to sue anyone they think aided or abetted a pregnant person in receiving an abortion, meaning there is no single individual or office that abortion advocates can sue to block enforcement of the bill. SB 8 is effectively immune from court challenges.
SCOTUS upheld this framework through their decision in Whole Woman’s Health v. Jackson (2021). In her dissent, Sotomayor points out that the decision makes it impossible for people to challenge the law and warns that the decision “leaves all manner of constitutional rights more vulnerable than ever before.”
Sotomayor’s warning has come true. These “abortion trafficking” laws are using the same private lawsuit framework as SB 8 to attack the constitutional right to travel. Just as before, there is no way to stop these laws from stripping people’s constitutional rights.
Project 2025 also wants a national database of every abortion performed at a clinic or hospital, which would include the state the pregnant person lives in. A database like that would be a gift to groups in Texas that are trying to sue under these “abortion trafficking” laws – the man who wrote SB 8 has attempted to force abortion funds to turn over similar information already.