The Women’s Bar Association of the District of Columbia condemns Texas Senate Bill 8 (“TX SB8”) as the latest assault on women’s reproductive health. This Texas law makes abortion unavailable six weeks following a woman’s last menstrual period, making it insensitive to basic biology and women’s reproductive health. It deputizes private citizens to file private lawsuits against the person obtaining the abortion or anyone helping them realize this crucial health decision. TX SB8 is representative of national pernicious action to deny women the most fundamental of rights, that of privacy and controlling their bodies. It denies women their humanity and dignity; it infantilizes them.
The WBA condemns efforts to strip away women’s rights, efforts that further inequality between the sexes and which work to take away control of their lives, decisions, bodies, sexuality, privacy, and their participation in the workplace and in democracy. The WBA further condemns TX SB 8’s authorization of citizens to terrorize women seeking abortion care, those who provide abortion care, and those who assist women seeking abortion care.
On September 1, 2021, the Supreme Court of the United States, in a 5-4 decision, refused to stay this Texas law for procedural reasons. We acknowledge that the Court’s majority stated that its opinion was reached in part because it is “unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention” and that the “order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.” Nevertheless, and even giving the most reasonable reading to these statements, one cannot ignore that the practical effect of this ruling is an affront to decades of legal precedent established by the seminal case protecting a woman’s right to choose an abortion, Roe v. Wade, 410 U.S. 113 (1973) and the later cases reinforcing that right (most recently at the Supreme Court level, Planned Parenthood v. Casey, 505 U.S. 833 (1992) and June Medical Services v. Russo, 591 U.S. ___ (2020)). To that end, the WBA supports the United States Department of Justice’s action in filing a lawsuit against Texas over TX SB8, citing the unconstitutionality of its anti-choice law.
But while litigation winds its way through the courts, TX SB8 will endanger the reproductive health of women in Texas, threaten the stability of these women’s families and loved ones, and will disproportionally negatively impact underserved women of color. Denial of abortion has grave consequences for women’s health and wellbeing. Women denied a wanted abortion or who have to carry an unwanted pregnancy to term have four times greater odds of living below the federal poverty level. See Diana Greene Foster et al., Socioeconomic Outcomes of Women Who Receive and Women Who Are Denied Wanted Abortions in the United States, 108 Am. J. of Pub. Health 407, 407–13 (2018). In addition, these consequences are further complicated by a dire maternal health crisis facing the nation. Specifically, the CDC reports that Black, American Indian, and Alaskan Native women are two to three times more likely to die from pregnancy-related causes than white women. Moreover, the CDC reports that racial and ethnic disparities in pregnancy-related deaths have persisted over time.
Women need access to all medical interventions and procedures – abortion is simply that, a medical procedure – to ensure their health and well-being. Consider that even for cases in which a woman learns she is pregnant within six weeks of her last menstrual period, we know that anyone who has ever had to simultaneously make a doctor’s appointment, find emergency childcare, and secure time off from work, understands that what amounts, at best, to a two-week window will make abortion unavailable for most who need it in Texas and states that follow Texas’s lead.
The Texas law takes a crucial medical decision out of the hands of those most qualified to make the decision — the person who is pregnant and her doctors. Making things more fraught is that a private right of action is now enshrined in state law that transforms ordinary citizens into bounty hunters able to collect cash incentives for prosecuting women’s medical care. Such a provisional construction endangers women’s health, infantilizes their private decisions, and threatens the rule of law.
Our statement today is consistent with our 104-year old mission, which is clearly stated in our Articles of Incorporation, to “maintain the honor and integrity of the profession of the law.” As we have noted above, the rule of law is threatened, and it is well-established legal precedent that women have a constitutional and fundamental right to privacy in their bodies and a right to obtain abortions. TX SB8 threatens those fundamental rights. Our statement is also consistent with our longstanding practice of defending a woman’s right to access the healthcare they need. See WBA Issue Statement on Health Care.
Recognizing the urgency and complexity of these issues, the WBA plans to convene and facilitate discussion on the important substantive legal issues at play (yet another action consistent with our prior actions). The WBA will also continue its long precedent of fighting for reproductive health and freedom in the form of supporting amicus briefs. The WBA encourages its members and allies to join us in protecting women’s health and medical decisions.