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Supreme Court Fails To Get Involved, So Texas Abortion Law Goes Into Effect

A MARTINEZ, HOST:

Texas abortion law is in effect today after the Supreme Court failed to block it by midnight. The law allows someone the ability to file a lawsuit against anyone who tries to help a person obtain an abortion after they're six weeks pregnant. Stephen Vladeck is a professor at the University of Texas at Austin, an expert on federal courts. Stephen, what can you tell us about what this law now does?

STEPHEN VLADECK: Yeah, I mean, so the law really does make abortion illegal in just about every single case starting with the six weeks of pregnancy. And, of course, that's measured not from conception, not from when the woman knows she's pregnant, but from when their last menstrual cycle took place. That has the effect of banning probably 85 to 90% of otherwise lawful, otherwise constitutionally protected abortions all across the nation's second-largest state. And we know that most of the providers across the state have stopped providing such abortions as of this morning.

MARTINEZ: Yeah, abortion providers claim this law would drastically reduce access to abortion services. What are some of the immediate effects that this has on their services? What can they not do?

VLADECK: Well, I mean, they basically cannot provide any abortion - any abortions at all for women who are past the six weeks of pregnancy. And I think it's also going to chill the provision of any number of other services to a woman in that position because the law is written in such a way where providers or those who aid and abet providers in the performance of abortions can be held liable, and it's $10,000 per case. So what the providers are afraid of, I think quite rightly, is a deluge of lawsuits starting today under a law that allows literally anyone to sue - you could sue; I could sue - and that every time, even if they succeed, they have to pay the cost of defending the lawsuit, and if they fail, they have to pay $10,000 per case. So, you know, so long as Roe v. Wade remains on the books, this is going to make compliance with Roe, this is going to make women's assertion of their right under Roe to a pre-viability abortion just about meaningless for most women in Texas.

MARTINEZ: I know rape and incest are not included in this, but medical emergencies are. Do we have a clear idea of what that means?

VLADECK: No, we don't. I mean, I think the statute is deliberately vague on that front, which is why, you know, I think it's most abortions, not all abortions, starting with the six weeks of pregnancy. But, you know, the reality is the folks who went to the Supreme Court asking for emergency relief last night, who didn't at least get it thus far, in their papers, I mean, they talk a lot about just how many people this is going to affect. They talk about, you know, minors who are up against the end of viability who, you know, had to comply with Texas' waiting period for an abortion and therefore couldn't get an abortion before today and now can't.

And so, you know, I think this is why so many folks portray this as a frontal assault on Roe. This law and Roe can't coexist. And so the question's going to be, what are the courts going to do about it now that it's in effect?

MARTINEZ: Why didn't the Supreme Court do anything about it on the emergency request to block it?

VLADECK: Yeah, I mean, it's a great question. I think, you know, the best defense of the justices, and I'm not sure how much of a defense it is, is that the case got to them very late. The application for emergency relief really only got to the court late on Monday because of how late the court of appeals acted in stopping the district court from blocking this law.

But, you know, that said, the court has shown repeatedly over the last year that it's willing to bend over backwards and issue late-night decisions in other contexts, including, for example, to protect religious liberty. And so the fact that the justices did not rule last night when they had an opportunity to, when they knew the clock was running I think is a pretty powerful sign of where they stand on this issue and for defenders of Roe, for supporters of abortion, a pretty ominous harbinger of things to come.

MARTINEZ: And no other six-week ban has been allowed to go into effect even briefly. That's Professor Stephen Vladeck from the University of Texas at Austin. Thank you very much.

VLADECK: Thank you. Transcript provided by NPR, Copyright NPR.