Texas Abortion Law: Will The Supreme Court Intervene?

The Supreme Court's decision to overturn Roe v. Wade in 2022 has had a profound impact on abortion rights across the United States, with Texas being at the forefront of this contentious issue. The state's restrictive abortion law, known as the Heartbeat Act, bans abortions after six weeks of pregnancy and empowers citizens to sue abortion providers. This law has faced strong opposition and sparked intense debates, with critics arguing that it infringes on constitutional rights and poses a threat to women's health. Despite legal challenges and appeals, the Supreme Court has remained silent on the matter, allowing the law to take effect and significantly impacting abortion access in Texas. With the upcoming elections in November, Democrats are targeting Republican incumbents on the Texas Supreme Court, hoping to influence the state's near-total abortion ban. The outcome of these elections will have significant implications for abortion rights in Texas and could set a precedent for other states grappling with similar issues.

The Supreme Court's silence on Texas's abortion law

The Supreme Court's silence has been denounced by critics as unconstitutional and a threat to women's health. Biden, in a statement, criticized the Texas law for impairing women's access to healthcare and deputizing private citizens to bring lawsuits against those who help someone get an abortion. Hillary Clinton, in a tweet, called out the court for allowing an "unconstitutional abortion ban" to go into effect under the cover of darkness.

The Supreme Court's silence has also been met with responses from other political figures. Alexandria Ocasio-Cortez, the New York representative, tweeted a video clip of her speaking against Brett Kavanaugh's nomination to the court, emphasizing the connection between sexual assault, abuse of power, and the need to protect vulnerable individuals' rights. Joaquín Castro, a congressman from Texas, urged Congress to act, emphasizing that all women have a constitutional right to complete healthcare. Carolyn Maloney, the Democratic chair of the House oversight committee, accused the court of putting the health and safety of Texans, particularly those with lower incomes and people of color, at risk.

The impact of the Supreme Court's silence extends beyond Texas. With the overturn of Roe v. Wade in 2022, state courts have become the new electoral battleground, and the influence of the Texas law is already being felt in other states. For example, in Arizona, two justices are being politically targeted for ruling on abortion bans. The Supreme Court's inaction on the Texas law has also sparked discussions about expanding the number of justices on the high court to prevent similar incidents from occurring in the future.

While the Supreme Court has remained silent on the Texas abortion law thus far, it is expected to take on a Mississippi abortion ban in its next term, which began in October 2021. The Mississippi law bans abortion after 15 weeks of pregnancy and is less restrictive than Texas's law. However, it still attacks the core provision of Roe v. Wade, and it is unclear how the Supreme Court's ruling on this case will affect its view of Texas's law.

Democrats' response to the Supreme Court's inaction

Top Democrats, including Joe Biden and Hillary Clinton, have criticized the Supreme Court for not taking up an appeal that would have at least temporarily blocked the Texas abortion law. In a statement, Biden said:

> The Texas law will significantly impair women's access to the health care they need, particularly for communities of color and individuals with low incomes.

He added that his administration "will protect and defend" the rights established under Roe v. Wade.

The New York representative Alexandria Ocasio-Cortez, who is a survivor of sexual assault, responded to the law and the Supreme Court's inaction by tweeting:

> Among many other warnings, survivors warned that sexual assault is about abuse of power, and a judge credibly accused of such shouldn't be trusted with the rights of the vulnerable. Now Roe is upended. But we're not going anywhere. This is a fight for our lives.

Joaquín Castro, a congressman from Texas, urged Congress to act, emphasizing that all women have a constitutional right to complete healthcare. He said:

> The Supreme Court allowed the law to go into effect – effectively ending Roe v Wade protections in Texas.

In a statement, Carolyn Maloney, the Democratic chair of the House oversight committee, said:

> In refusing to intervene last night, the Supreme Court tipped the scales of justice in favor of one of the most draconian state abortion bans in history.

In the wake of the Supreme Court's inaction, the Biden administration's Department of Health and Human Services issued a new measure that strengthens the Health Insurance Portability Act (HIPAA). The long-standing medical privacy law historically included an exception that allowed healthcare providers to turn over medical records to law enforcement. The new rule closes that loophole for patients who seek abortion care in legal states, prohibiting healthcare providers, insurers, and states from giving reproductive care information to criminal or civil investigations.

The Biden administration's policy to protect patients and providers

The Biden administration has taken several steps to protect patients and providers in the wake of the Supreme Court's overturning of Roe v. Wade. Here are some key policies and actions outlined in their fact sheets:

Safeguarding Reproductive Health Privacy under HIPAA

The Department of Health and Human Services (HHS) has issued a proposed rule to strengthen privacy protections under the Health Insurance Portability and Accountability Act (HIPAA). This rule aims to prevent an individual's information from being disclosed for investigations, lawsuits, or prosecutions related to legal reproductive healthcare, including abortion. It reinforces that doctors, medical providers, and health plans are generally not required and often not permitted to disclose patients' private information, including to law enforcement.

Taking Action Against Illegal Use and Sharing of Sensitive Health Information

The Federal Trade Commission (FTC) has committed to enforcing the law against the illegal use and sharing of highly sensitive data, including reproductive health care data. They have taken enforcement actions against companies for disclosing consumers' personal health information without permission.

Helping Consumers Protect Their Personal Data

The Federal Communications Commission (FCC) has launched a guide for consumers on best practices for protecting their personal data, such as geolocation data, on mobile phones. Additionally, HHS has provided a how-to guide for consumers on safeguarding their data on personal devices and when using mobile health apps, which are generally not covered by HIPAA.

Protecting Students' Health Information

The Department of Education (ED) has issued guidance to over 20,000 school officials, reminding them of their obligation to protect student privacy under the Family Educational Rights and Privacy Act. This guidance emphasizes the importance of student health privacy and ensures that schools obtain written consent before disclosing personally identifiable information from students' educational records, except in certain circumstances.

Safeguarding Patients' Electronic Health Information

HHS has issued guidance and a final rule affirming that medical providers can take steps to protect patients' electronic health information, including data related to reproductive healthcare. Patients have the right to request that their electronic health information not be disclosed, and HIPAA's privacy protections apply to this information.

Ensuring Access to Accurate Information and Legal Resources

To address the chaos and confusion following the overturning of Roe v. Wade, the Biden administration has launched ReproductiveRights.gov. This website provides timely and accurate information on people's rights to access reproductive healthcare, contraception, abortion services, and health insurance coverage. It also offers guidance on filing complaints related to patient privacy and nondiscrimination. Additionally, the Department of Justice (DOJ) has launched justice.gov/reproductive-rights, a centralized online resource on their efforts to protect reproductive health care services under federal law.

Convening Lawyers in Defense of Reproductive Rights

DOJ and the White House Counsel have brought together hundreds of lawyers and advocates from various sectors to offer pro-bono legal services and defend reproductive rights. This network, known as the Abortion Defense Network, provides legal advice and representation to those seeking or offering reproductive healthcare services.

Defending Access to Emergency Medical Care

The Biden administration is committed to ensuring that patients experiencing pregnancy loss and other pregnancy-related emergencies have access to emergency medical care under the Emergency Medical Treatment and Labor Act (EMTALA). HHS has issued guidance, and Secretary Becerra has sent letters to providers affirming that EMTALA preempts conflicting state laws restricting abortion in emergency situations. The DOJ has also taken action to defend and enforce this interpretation before the Supreme Court.

Educating Patients and Healthcare Providers on Rights and Obligations for Emergency Medical Care

HHS has launched a comprehensive plan to increase awareness of EMTALA and improve procedures for ensuring that patients facing all types of medical emergencies receive the care they are entitled to. This includes providing accessible resources about rights and protections for patients, as well as training materials for healthcare providers to enhance their capacity to comply with federal requirements.

Defending the Right to Travel

The Biden administration has reaffirmed that women must remain free to travel safely to another state to seek reproductive healthcare. The DOJ has filed statements of interest in lawsuits challenging the Alabama Attorney General's threat to prosecute those who assist women seeking lawful out-of-state abortions. These statements clarify that states may not punish third parties for helping women exercise their constitutional right to travel. The DOJ continues to monitor states' efforts to restrict this right.

Supporting Patients Traveling Out-of-State for Medical Care

HHS has invited US governors to apply for Section 1115 waivers to expand access to care under the Medicaid program for women traveling from states where reproductive rights are under attack. This initiative aims to ensure that women can receive the medical care they need, even if their home state denies them those services.

The impact of Texas's abortion law on healthcare providers

Many providers have expressed concern over the threat of their patients' medical information being disclosed without their consent and used against them in legal proceedings. The law has also led to an increase in requests for patient records from out-of-state officials, as patients seek abortion care outside of Texas. This has prompted the Biden administration to issue a new measure strengthening the Health Insurance Portability and Accountability Act (HIPAA), closing a loophole that allowed healthcare providers to turn over medical records to law enforcement.

The impact of the Texas abortion law on healthcare providers extends beyond the state's borders, as patients from Texas seek care in nearby states. Dr. Lauren Thaxton, an ob-gyn who relocated her practice to Colorado, continues to see patients from Texas daily. These patients often express fear of criminalization and worry that their medical information will be used against them if they return to Texas.

Texas's aggressive pursuit of abortion restrictions has also targeted out-of-state care. The state's attorney general, Ken Paxton, is currently suing the city of Austin for helping its residents seek abortion care outside of Texas. Additionally, anti-abortion activists have successfully placed an "abortion trafficking" ordinance on the ballot in the town of Amarillo, which would allow citizens to file lawsuits against those who "aid or abet" abortion, including anyone who provides funding, transportation, or even directions to a clinic.

Healthcare providers in Texas and across the country are facing increased legal risks and challenges to their privacy due to the state's abortion law. The law has created a climate of fear and uncertainty, with providers worrying about the potential consequences of providing abortion care, even in cases where it is legally permitted. The impact of the Texas abortion law on healthcare providers is far-reaching and ongoing, with providers struggling to navigate the complex and restrictive landscape.

The role of state Supreme Courts in abortion law

Prior to the Dobbs decision, the Supreme Court rulings in Roe v. Wade and Planned Parenthood v. Casey (1992) created and maintained federal protections for a pregnant woman's right to get an abortion. These rulings ensured that states could not ban abortion prior to the point at which a fetus may be deemed viable. However, with the overturning of these precedents, states now have broad discretion to prohibit or regulate abortion as they see fit, provided they do not conflict with federal law.

The role of state Supreme Courts has become increasingly important in the aftermath of the Dobbs ruling. State legislation and court rulings now determine most aspects of abortion access, and several states have enacted or are in the process of enacting stricter abortion laws. Some states have also resumed enforcement of laws that were in effect prior to 1973. While such laws are no longer considered to violate the US Constitution, they continue to face legal challenges at the state level.

The Center for Reproductive Rights has brought cases in state courts to build strong abortion protections at the state level, independent of federal law. Their efforts have resulted in broader protections for abortion rights and access, influencing outcomes in other cases and courts. Additionally, state courts and constitutions offer stronger and expanded legal grounds for protecting abortion rights, shielding access to abortion in highly restrictive parts of the country.

State Supreme Courts have played a crucial role in shaping abortion law, with some recognizing that their state constitutions protect abortion rights and access more strongly than the US Constitution. For example, the Alaska Supreme Court has relied on rights to privacy in their state constitution to recognize strong protections for abortion. Similarly, the Arizona Supreme Court ruled that a total abortion ban from 1864 could be enforced, but this was later repealed by the state legislature, leaving a 15-week ban in place.

In summary, the role of state Supreme Courts in abortion law is complex and varies from state to state. While some states have moved to restrict abortion access, others have enacted protections for abortion rights, highlighting the dynamic and evolving nature of abortion law in the United States.

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