Q&A With Terry McGovern on the Texas Abortion Law

September 17, 2021

The right to an abortion in the United States has been protected by the Constitution since the landmark Roe v. Wade Supreme Court decision in 1973. In the years since, conservative states have implemented laws that chip away at that right with restrictions like mandatory ultrasounds and waiting periods. On the federal level, the Hyde Amendment of 1980 barred the use of federal funds to pay for abortion except to save the life of the woman, or if the pregnancy arises from incest or rape.

In the last year, Mississippi and Texas upped the ante, introducing draconian laws that drastically undercut the right to abortion. Both laws have been challenged in the courts, but on September 1, the Supreme Court allowed the Texas law to go forward—a decision that shocked many legal experts, including the Columbia Mailman School’s Terry McGovern, the Harriet and Robert H. Heilbrunn Professor and Chair of the Heilbrunn Department of Population and Family Health. In the following Q&A, McGovern explains what makes the new laws so harmful, their implications for public health, and how researchers and advocates are working to protect the right to abortion.

What does the new Texas law say? How is it different from previous legal restrictions on abortion services? 

Texas law SB8 deputizes and incentivizes ordinary citizens to enforce a ban on abortions after the first six weeks of pregnancy—even in cases of rape or incest. The one exception is a medical emergency, but the law requires doctors to document the reasons for the exception with great specificity. Pregnancy is dangerous, and there are many potential risks for a fatality—ectopic pregnancy, severe preeclampsia, cancer, heart conditions—all things that would drive a person to seek an abortion. But doctors may be concerned about getting sued—especially since the new law puts the burden on the defendant to prove they are not breaking the law.  

Is SB8 an effective ban on abortion?

Absolutely. Before the Texas law was enacted, between 85 and 90 percent of abortions in the state occurred after six weeks. At six weeks, most pregnant people don’t know they are pregnant. Those who are seeking abortion services today won’t want to risk that their loved one is sued. For example, if a child in Texas is sexually assaulted and the mother helps the child get an abortion, that mother can be sued—even if the mother is out of state. It’s chilling. Already, in the first weeks since the law has gone into effect, we’ve seen a surge in abortions in surrounding states. Of course, not everyone is able to travel this way.

What’s happening in the courts?

The Texas law was purposely written to circumvent the Constitution, which says states cannot place an undue burden on their citizens. By inviting citizens to sue, Texas is attempting to insulate itself by saying ordinary citizens are enforcing the abortion restrictions, not the state. This legal strategy is an unprecedented end-run around Roe. Already, several states have said they are going to pass similar laws. On September 1, the Supreme Court elected to not stop the law’s implementation. To allow this kind of vigilantism to be unleashed suggests something hugely disturbing about the future of this court. On September 9, the Justice Department sued Texas, arguing that the law is unconstitutional because its intent is to restrict the right to abortion.

Last year, Mississippi introduced a law that bans abortions after 15 weeks. That law aims right at the heart of Roe, which protects abortion through the first trimester. The U.S Circuit Court blocked the Mississippi law, but the Supreme Court said they are going to review it, which could lead to an outright reversal of Roe—a likely outcome considering what we know about who is on the court. Even if Roe stands, the Texas law is an effective ban on abortion with dire consequences for the health of girls, women, and all pregnant people.

What is being done to protect the right to abortion while these laws make their way through the courts?

Here in Population and Family Health, we have been documenting the impacts of policies like the Trump-era gag rule that prohibited Title X grants from going to programs that give clinicians the freedom to tell their patients how they can safely and legally access abortion. The rule required service providers to give up federal funding for all services in order to give factual medical information even if patients asked for it and even if a pregnancy threatens their health. More recently, several states took advantage of COVID restrictions to shut down access to sexual and reproductive services, including abortion. The result is an increase in unwanted pregnancies, reproductive cancers, and maternal mortality—all of which cost the states more money. Advocates use this research to push for better policies.

At the federal level, there is a lot of support for the Women’s Health Protection Act, which would protect the right to abortion in all the states, but getting it through the Senate will be tricky. Back in April, the FDA stopped enforcing a regulation that requires abortion medications to be administered physically in person by a clinician. A pregnant person can currently get a virtual consultation with a provider overseas to get a prescription for a medical abortion which they can purchase online from another country. A pending bill in Texas would ban access to abortion-inducing pills for patients more than seven weeks pregnant and ban abortion-inducing pills from being mailed in Texas, although it’s unlikely that enforcement of the law for providers outside the country would be successful.

\While the Texas abortion law went in effect in early September, no anti-abortion lawsuits have happened so far; one reason is that activists flooded an anti-abortion “tips” website with erroneous information. Whatever happens in the states and the Supreme Court, there are incredibly creative and resourceful activists and providers working to ensure access to abortion.