AUSTIN, Texas — It's been nearly one week since the U.S. Supreme Court in a 5-4 decision ruled to let stand a controversial Texas abortion ban, and the legal future of the law remains uncertain. 


What You Need To Know

  • The Supreme Court's 5-4 ruling to not block abortion ban was not a ruling on the constitutionality of abortion, but instead based on a procedural technicality regarding how the law is enforced

  • Enforcement now in Texas is left up to private citizens who can now sue anyone they think helped with an abortion after six weeks

  • Abortion providers are having to turn away more than 80% of patients seeking abortions

The law bans abortions after the sixth week of pregnancy, which is before many women even know they’re pregnant. 

President Biden sharply condemned the ban and the Supreme Court’s ruling in a statement, saying it’s “an unprecedented assault on a woman’s constitutional rights under Roe v. Wade.” 

The Supreme Court was clear that the 5-4 decision to not block this law was not a ruling on the constitutionality of abortion. Instead, it was based on a procedural technicality that comes down to how this law is enforced. 

“Turning over the enforcement of the law to private citizens is a pretty rare thing," said H. W. Perry Jr., constitutional law and government professor at the University of Texas at Austin. 

He says typically, for laws restricting abortions, the government is tasked with enforcement. 

But in Texas’ new six-week abortion ban, enforcement is left up to private citizens who can now sue anyone they think has helped someone receive an abortion after six weeks. 

“If they prevail, they can get $10,000. So there's all kinds of incentives for private citizens to go around and try and stop abortions, not only because of their belief of wanting to stop the abortion, but because they can also profit from it," said Perry Jr. 

Normally, opponents of a state law can sue the government agency that’s tasked with enforcing it to pause the law from going into effect while the issue is worked out in court. That’s not an option for abortion providers with this law, which essentially shields the state from having to immediately defend them if the ban is constitutional. 

“Now we'll have to wait until an individual citizen sues to have the abortion stopped and and see what courts would do with that case," said Perry Jr. 

The Supreme Court wants those procedural questions to be worked out in lower courts, but chose not to block enforcement of the law while that’s happening. 

“It is a historic victory for the pro-life movement, but that lawsuit is still ongoing, and so we're optimistic in that, that we will be successful, but ultimately we'll have to see what happens," said Rebecca Parma, senior legislative associate at Texas Right to Life. 

Chief Justice John Roberts, along with the court’s three liberal justices, took issue with that decision in their dissent. 

“Justice Roberts seems to be really concerned about a lot of the procedural stuff. He says we need to really think about this and not just have an overnight argument," said Perry Jr. "And since the constitutional right exists, we should defer and allow women to continue to exercise their constitutional right until we hear these cases."

With the law in effect, abortion providers in Texas are already seeing the impact, having to turn away more than 80% of their patients seeking abortions. 

“It is beyond devastating for the patients we're seeing, and it's really undermining any sort of protections that any of us believed were in place from the Supreme Court," said Sarah Wheat, spokesperson for Planned Parenthood of Greater Texas. 

The issue of whether this law is constitutional could still be brought before the Supreme Court in the future. But it’s not likely to happen before the fall, when the high court is scheduled to hear another abortion case from Mississippi. 

“We do ultimately want Roe v. Wade overturned and abortion completely prohibited in our state. And so this is the next stepping stone in that process," said Parma. 

This is an outcome abortion rights groups are determined to prevent. 

“We’re firmly, deeply committed to doing everything we can to protect and restore access to abortion for patients who are seeking the service," said Wheat. ​

The law also states that even if an abortion provider is sued and wins the case in court, it is not eligible to have its attorney’s fees covered by the person who brought the lawsuit against the provider. 

That could make being tied up in lawsuits financially ruinous for abortion providers, and why many are not continuing to provide abortions after that six-week deadline, despite the Roe v. Wade precedent.