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Prof. Serena Mayeri on abortion rights in the Supreme Court: Reproductive freedom ‘remains in grave jeopardy’

November 10, 2021

The Texas abortion law SB8 “has already had devastating short- and long-term consequences,” said Mayeri.

Earlier this month, the U.S. Supreme Court heard arguments in two cases related to Texas abortion law SB8, which effectively prohibits abortions starting around the sixth week of pregnancy. SB8 gives enforcement power to private individuals, including those who do not live in Texas, to bring a lawsuit in state court against anyone who performs or “abets” an abortion in Texas and to receive $10,000 in damages.

As the U.S. Supreme Court considers procedural challenges to the Texas abortion law, the University of Pennsylvania Carey Law School’s Office of Communications spoke with Professor of Law and History Serena Mayeri about the already devastating consequences of the law.

Here, Mayeri also explores the direct threat to abortion rights on the Court’s docket: Dobbs v. Jackson Women’s Health Organization in which Mississippi has asked the Court to overturn Roe v. Wade and Planned Parenthood v. Casey, the precedents that currently place limits on states’ ability to ban pre-viability abortions. Mayeri co-authored an amicus brief in Dobbs.

Office of Communications: Can you provide a brief background about the challenges in the U.S. Supreme Court to the Texas abortion law?

Mayeri: First, in Whole Woman’s Health v. Jackson, abortion providers sued a state judge and a county clerk as well as several state officials to enjoin them from participating in the enforcement of SB8. This is the case in which a closely divided Court declined to prevent the law from going into effect in September.

The second case, United States v. Texas, was filed by the Biden administration directly against the state of Texas in early September, seeking to enjoin enforcement of SB8. A federal district court issued a 113-page opinion granting that injunction, but it was voided by the Fifth Circuit Court of Appeals.

Both cases were briefed and argued on an unusually expedited review schedule. The questions presented are ostensibly procedural: whether abortion providers and/or the federal government may challenge the law in court by suing state officials or the state itself. But the stakes are substantive: because the Court allowed SB8 to take effect rather than blocking the law while legal challenges proceeded, access to abortion — especially for low-income Texans, people of color, and people living in rural communities — has been severely curtailed.

Office of Communications: Can you talk more about the short-term consequences of the Texas abortion law so far?

Mayeri: SB8 has already had devastating short- and long-term consequences. Many if not most people don’t know they are pregnant in time to obtain an abortion before six weeks. They are therefore forced to carry unwanted pregnancies to term if they do not have the means or wherewithal to take time off from work, travel out-of-state, and comply with all of the waiting periods and other obstacles that many surrounding states place in the way of abortion care.

Pregnancy itself can be dangerous, even life-threatening, especially for women and other pregnant people of color. Texas and the other states that severely restrict abortion also tend to have extraordinarily high rates of infant and maternal mortality. Supposedly “pro-life” states such as Texas refuse to adopt Medicaid expansion, comprehensive sex education, protections for pregnant workers, funding for affordable childcare, basic public health measures to prevent the spread of COVID-19, and other initiatives that would support the health and well-being of parents and children.

Office of Communications: What are some long-term consequences of the Texas abortion law?

Mayeri: The long-term repercussions of limiting access to reproductive health care include the exacerbation of already grim economic and health prospects for low-income people and people of color, not to mention deprivation of the basic human right to decide whether, when, and under what conditions to bear and raise children. Even when restrictive abortion laws remain in effect only temporarily, reproductive health care providers also suffer lasting consequences, including permanent closure.

Further, regardless of whether the Supreme Court allows either or both of the SB8 challenges to proceed, reproductive freedom — already very limited in many states — remains in grave jeopardy.

Office of Communications: There is another major abortion rights case being heard in the Supreme Court next month. Can you talk about that case and its potential impact?

Mayeri: On December 1, the Court will hear Dobbs v. Jackson Women’s Health Organization, a challenge to Mississippi’s near-total ban on abortion after 15 weeks. Dobbs is a direct challenge to the continuing vitality of the already limited abortion right: Mississippi has asked the Court to overrule Roe v. Wade and Planned Parenthood v. Casey and allow states leeway to ban abortions in most or all circumstances. Some anti-abortion activists and lawmakers ask the Court to go even further: to recognize a right to personhood beginning at conception and to require, not merely permit, abortion’s illegality.

The Court may well continue its gradual approach to undermining reproductive freedom, rather than issuing a dramatic repudiation of abortion rights in an election year. Indeed, the SB8 cases provide an opportunity for the Court’s newest justices to look reasonable and moderate before they fatally undermine abortion rights in Dobbs or another case. But the basic dynamic of reproductive injustice will persist: People without means will continue to bear the burden of reproductive control.

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