The NPR Politics Podcast - Abortion Is All But Banned In Texas

Episode Date: September 1, 2021

A state law took effect Wednesday banning abortion after about six weeks, before many women even know they are pregnant. It also allows people to sue others seeking an abortion and anyone who aids them in the process, with damages beginning at ten thousand dollars plus attorney's fees. So far, the Supreme Court has not halted the legislation.So far, the Supreme Court has not halted the legislation.This episode: White House correspondent Asma Khalid, legal affairs correspondent Nina Totenberg, and KUT reporter Ashley Lopez.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Listen to our playlist The NPR Politics Daily Workout.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Connor in Boulder, Colorado. I just finished the second and final day of the Colorado bar exam, and whenever I got a constitutional law question on the test, I always did my best to read the question in my head in the voice of Nina Totenberg. So, hopefully that helped. This podcast was recorded at... Ha ha! 11.27 a.m. Eastern Time on Wednesday, September 1st.

Things may have changed by the time you hear this, but I'm sure I'll still be waiting to get my results back. All right, here's the show. Nina, a tribute to you. So nice. Well, hey there, it's the NPR Politics Podcast. I'm Asma Khalid. I cover the White House. I'm Nina Totenberg. I cover the Supreme Court.

And today on the show, we have a special guest, Ashley Lopez from member station KUT in Austin. Ashley, thanks for joining us. Happy to be here. Ashley, you are joining us because we have big news from Texas today. The state now has the most restrictive abortion law in the entire country, essentially banning abortion after six weeks. And Ashley, I will say that this sounds like a near complete ban on abortion, because candidly, I did not even know I was pregnant with my second child at six weeks. What are the parameters of the law?

Yeah, you're right. This is a very narrow window for getting an abortion. In fact, abortion providers have told me they estimate about 85% of people who would otherwise for getting an abortion. In fact, abortion providers have told me they estimate about 85% of people who would otherwise be getting an abortion are going to be unable to get one with this law in place because it is so rare to catch a pregnancy that early. This was a law that was championed by anti-abortion groups in the state. Other states have similar bans to this, which are, they're so-called heartbeat bills. And the argument is that they want to make it illegal to get an abortion once a fetal heartbeat is detected. You know, that is, this is a point of contention. Not everyone agrees that, you know, when a fetal heartbeat can actually be picked up on a sonogram. But

this is what the law says is that once a fetal heartbeat is detected on a sonogram. But this is what the law says is that once a fetal heartbeat is detected on a sonogram, that is when an abortion cannot be provided to someone in Texas. Ashley, are there any exemptions, any exceptions, say for the case of rape? In the law, there is no exemption for people who are raped. There is only an exemption for someone whose life is in danger so that pregnant person can receive an abortion if they are in a medical situation. But, you know, this law applies even to people who are victims of rape and incest currently. And Nina, I'm thinking of a number of other states, you know, Ohio, Georgia, who have tried to put in place these so-called fetal heartbeat bills. They have not stood up.

So what makes the Texas law different? Well, they did a very specific, unusual, and to say the least, legally controversial thing with this law, they said, look, the normal people who enforce the laws of this state will not be enforcing this law. or is going to an abortion clinic to get an abortion, or they're being assisted by somebody by driving them there or helping to finance the abortion. And so individuals can sue any individual who aids and abets an abortion as well as the clinics. And they don't have to have a vested interest in the actual situation. They don't have to have a vested interest in the actual situation. They don't have to have a vested interest at all. So the normal way that you

challenge a law is you sue the officials of the state who are in charge with enforcing the law. You can't do that in this case. So the abortion rights groups, ultimately what they tried to do is to sue every state judge and county clerk whose court this would come to, and the state claims that those people have sovereign immunity and can't be sued. agreed to have a hearing on this. The Fifth Circuit Court of Appeals blocked that hearing from taking place, canceled the hearing. So the reproductive rights folks went to the Supreme Court and said, we need an emergency order stopping this law from going into effect to allow this judge to hear this case and then to take it up to you in the normal course of events. So far, as of this moment, and if my phone rings, I will answer it. As of this moment, the Supreme Court

has now acted. So the law went into effect. And there are all kinds of different things that the court could do, and we don't know what they're going to do. But you can be pretty sure that the members of the court will not agree as one on what they do. And if the status quo prevails, that means abortion in Texas, for all practical purposes, will not be available. I have a lot of follow-up questions there, but just one briefly, Nina, is do you expect the courts to act on this emergency application that they've tried to submit there, the abortion providers? groups went to the court with to block the law, or granting the request in a temporary fashion to allow the judge to hear arguments in the case and to decide the case, or some other thing. They could do some fancy punt that I haven't figured out. But they also have another case that they've already granted about a 15-week limit. That's from Mississippi.

So we really don't know what the court is going to do. But if it doesn't intervene in this Texas case, Roe v. Wade, for all practical purposes, will be dead in the state of Texas. And other states will probably try to adopt similar things. And I think you can see a fair amount of chaos ensuing as a result. All right, then let's take a quick break. And we'll have more to talk about in just a second. And we're back. Ashley, what have you been hearing from folks within Texas? This is presumably a huge victory for anti-abortion groups in the state. Yeah, I mean, this is a big deal for them for many reasons. I mean, it is one of the most

restrictive abortion bans anywhere right now. But also, you know, this was a test in a lot of ways for the anti-abortion movement. They wanted to find a way to make sure a law was put in place before it could be blocked by the courts. And as of right now, they won that battle. There is currently a ban in place that flies in the face of Roe v. Wade, which is what they've wanted all along. So in a lot of ways, this is a win up and down for anti-abortion groups in the state, who, by the way, also pushed for this law to be passed in the first place and were key in the drafting of this

bill. There is one additional thing. When an individual sues to enforce the law, that individual is entitled, if they prevail, to damages of at minimum $10,000. So you can see that with tens, hundreds, thousands of lawsuits being filed, these clinics that perform abortions will find themselves under a financial siege as well as a legal siege. And if the individuals who sue prevail, they not only get damages, their lawyers get paid, and all the costs get paid.

And this is why, you know, administrators at abortion clinics here say they're not going to perform abortions after six weeks, because it is not just the clinic that is liable here, it is staff. Literally anyone who was present at that abortion could be liable for a $10,000 fine, which is not nothing for most people. That is a steep fine. Well, that's the minimum. It could be more. It could be more. Just so I understand clearly, Ashley, what you're saying, abortion providers that you've been speaking with are saying that there's essentially like a halt. There has been a stop now on abortions being provided there in the state of Texas. Right. To anyone who does not meet that six-week threshold.

Which would be most folks. Which would be most folks. As I mentioned, they're estimating about 85% of people who are seeking an abortion. So what have abortion rights advocates been telling you? What are women who are seeking an abortion trying to do in this moment? Well, this is a very unique situation. So what I have heard, you know, obviously clinics have taken the position that they're, you know, going to follow the law because they are not going to risk those fines and all the legal trouble. But, you know, all those sort of ancillary groups like abortion funds and a good example are, you know, like rape crisis counselors that

I've talked to. Everyone's weighing this differently. You know, the risk for an abortion fund is pretty high. But, you know, a rape crisis counselor, you know, a social worker told me that she plans to continue to talk to people about their options, even if that woman eventually ends up getting an abortion that, you know, violates the ban, and they could possibly be liable, they feel it is in their ethical code to continue providing information to women about their options after, you know, sexual and a sexual assault. So it's kind of interesting, because I think no one has been through been in a position like this before no one's had the threat of literally anyone being able to sue them for something.

So even people they have never interacted with. So it's a very interesting time for anyone who works in this space. You know, you mentioned, Ashley, that this law is unusual, but in some ways it follows the pattern that we've been seeing from a number of Republican-led legislatures in other states. There has been a desire to crack down and not allow earlier term abortions to occur. And, Nina, that leads me to the broader question of, you know, what does the court challenge process look like from here? Because, as you mentioned earlier, there is another case that the Supreme Court is expected to take up. And I guess where I'm very confused at this point is there seemed to be an understanding that Roe versus Wade, which was, you know, a decision from 1973, was more or less had established a precedent. And now you're seeing a number of states try to essentially undermine that precedent.

Well, that's why they went to the Supreme Court. And that's why we really want to know what the court is going to say, at least at this point. Because after all, I very clearly remember Justice Kavanaugh, for example, in his confirmation hearing saying that Roe versus Wade, and it's the subsequent decision in Casey, are super precedents. I mean, the court has considered these cases dozens and dozens. What does that mean that it's a super precedent? Well, that's, you know, that's going to be the $64 question, I guess. And there is an even, you know, this particular case has implications beyond abortion and beyond Roe. Because if this system of attacking a state law by private citizens is okay for abortion,

is it okay for New York to do the same thing for guns? Could it pass very strict gun rules and say that individual citizens could enforce them. I mean, it's a whole different way of approaching law enforcement in this country. And it has no precedent in how we have done that in the past. All right, well, let's leave it there for today. Ashley Lopez of KUT, thank you so much for joining us. Thank you. And we will be back tomorrow with more political news.

I'm Asma Khalid. I cover the White House. And I'm Nina Totenberg, and I cover the Supreme Court. And thank you all, as always, for listening to the NPR Politics Podcast.