Access to abortion has been already limited in Texas due to the HB2 law passed in 2013, which significantly increased administrative requirements for clinics that provide abortion services. As a result of this law, half of the abortion clinics shut down and never reopened, even after it was ruled unconstitutional by the Supreme Court in 2016

The US Congress must protect access to abortion in federal law, while lawmakers in Texas must repeal the extreme abortion ban (Texas law SB8) that will have a devastating impact on the sexual and reproductive health and human rights of women and girls, and other people who can get pregnant in the state, Amnesty International said today.

“The ban seriously endangers lives by penalising the provision of a vital health care. By arbitrarily outlawing healthcare providers from terminating a pregnancy beyond six weeks, this law effectively bans all abortions before women and girls even realize they are pregnant. It must be condemned unequivocally for undoing decades of safeguards for their well-being and rights. Lawmakers in Texas need to repeal this terrible legislation and focus on providing support, not punishment, to women, girls and other people who are pregnant,” said Agnès Callamard, Secretary General of Amnesty International.

“Amnesty International is extremely concerned not only that this ban will have dire consequences for abortion access in Texas but also that it sets a dangerous precedent for other states to follow. It is part of a long-term strategy by anti-abortion advocates to deprive women, girls, and other people who can get pregnant of their reproductive autonomy and sexual and reproductive rights. Faced with this threat, Congress must urgently act to protect access to abortion in federal law.”

In a 5-4 decision, the US Supreme Court refused to block the Texas abortion law from taking effect, citing that that their decision was based on procedural grounds, not the constitutionality of the law, and that other appeals could be pursued.  The Texas abortion ban has now become the most restrictive abortion law in the country. The ban comes into effect at a crucial moment when the Supreme Court is about to hear another major abortion case later this year.

The refusal of the US Supreme Court to intervene sets a dangerous precedent that abortion opponents will capitalize on in other states to effectively circumvent Roe v. Wade, the Supreme Court decision that ensures the right to access safe and legal abortion.

A near total abortion ban

The law bans abortion as early as six weeks of pregnancy, before most people even know they are pregnant.

It also includes an unprecedented provision that allows any private individual to file lawsuits to enforce the ban. It provides for financial compensation of $10,000 plus legal fees for any member of the public who successfully sues an abortion provider or those who “aid and abet” someone getting an abortion after six weeks of pregnancy.

This means clinics and their staff could be sued, as well as patients’ family members or friends, or anyone who drives a person seeking abortion to a clinic, provides financial assistance or counselling, or even “intends” to do any of those actions. In effect, the Texas legislature has deputized the state’s citizens as bounty hunters, offering them cash prizes for initiating civil actions to punish their neighbours’ medical procedures. 

“By authorizing private citizens to sue anyone who ‘aids or abets’ an abortion after the six-week stage, the law penalizes doctors, abortion rights activists, family members, friends and others providing support to women, girls and other people seeking abortions. It also creates a climate of fear and intimidation by encouraging citizens to seek monetary rewards for policing the rights of others,” said Agnès Callamard. 

US is backsliding on abortion rights

Over the last 25 years, more than50 countries have changed their laws to allow for greater access to abortion, at times recognizing the vital role that access to safe abortion plays in protecting the lives, health, and human rights of women, girls and all people who can get pregnant.

“While countries like Argentina and Ireland have made historic progress in upholding women’s sexual and reproductive rights by decriminalizing abortion in recent years, followed by the Mexico Supreme Court’s progressive ruling on 7 September, the United States has gone backwards,” said Agnès Callamard.

Since the US Supreme Court ruled in 1973 that abortion was legal in the landmark case Roe v. Wade, anti-choice activists and politicians have been working to overturn this decision by creating financial and logistical barriers that make it difficult or impossible for people to get abortions – despite what the law says.

States passing radical abortion bans that are clearly in violation of Roe v. Wade is the latest tactic of the anti-choice activists, as part of a deliberate strategy to advance these cases to the US Supreme Court, with the view that an increasingly conservative Court may undermine or even overturn Roe.

Anti-abortion laws do not stop or reduce abortions, but they do make them dangerous. The US has the highest maternal mortality rate of any developed nation, and states with more restrictive abortion laws already have higher rates of both infant and maternal mortality. That’s why these new laws are a recipe for disaster for pregnant people’s health.

The ban is a flagrant violation of human rights

The Texas abortion ban violates the right to access safe and legal abortion, and a range of other internationally recognised human rights, such as the rights to life, health, privacy, and the rights to be free from discrimination, violence, torture and cruel, inhuman and degrading treatment.

Access to abortion is a human right and key to protecting and upholding the full range of human rights of women, girls and others who can become pregnant. Being able to control one’s reproduction and to exercise reproductive autonomy affects all spheres of lives of women, girls and all those who can become pregnant. Criminalizing, restricting or otherwise denying access to safe abortion services has a cascading effect on the quality and course of people’s lives. Forcing someone to carry on an unwanted pregnancy, or to seek out an unsafe abortion, is a violation of their human rights, including the rights to equality, privacy and bodily autonomy.

Evolving international human rights law and standards increasingly recognise abortion as an integral component of sexual and reproductive healthcare, which is key to realizing individuals’ reproductive autonomy and their full range of human rights. UN human rights bodies and independent experts are also positioning abortion access as fundamental to achieving gender equality and social and economic justice and critiquing abortion laws that restrict and undermine pregnant persons’ rights to make autonomous decisions. To this end, the UN Committee on Economic, Social and Cultural Rights has explicitly identified increased access to abortion, as well as other sexual and reproductive health services, as part of states’ obligation to respect the right of women to make autonomous decisions about their health. UN experts have also noted that restrictive abortion laws and policies not only contravene human rights law, but also negate individuals’ autonomy in decision-making about their own bodies.

“The only person who should ever make decisions about a pregnancy is the person who is pregnant. Yet this ban violently strips away people’s ability to do so. Instead of trying to control people’s bodies, authorities must protect the rights of women, girls and others, including their right to abortion,” said Agnès Callamard.

It has a disproportionate impact on low-income people and on providers

The Texas abortion ban directly affects seven million women of reproductive age in Texas. But its disproportionate impact falls on people of low income, including teenagers, people of colour, migrants and refugees, who already struggle to access healthcare.

Abortion clinics in Texas will be unable to provide abortions as early as six weeks into a pregnancy, and do so under threat of reprisal as they are targeted for even being “suspected” of having violated the new abortion ban. According to providers and abortion rights advocates, the bill effectively bans 85% of abortions currently sought in Texas.

The Guttmacher Institute says that the average one-way driving distance to obtain abortion outside the state will now increase 20 times. This involves also increased investment of costs and time needed, which may result in huge delays for people who are not able to easily afford travel due to financial and other barriers.

The law will result in increased legal costs for clinics as they must hire lawyers to defend their staff from lawsuits they expect to face. If they lose a lawsuit, the state can shut the clinic in addition to them having to pay the legal fees of their opponents. If they win, the law prevents them from recovering their own legal fees. Most clinics will likely stop providing abortion services for fear of such lawsuits and access to abortion will be drastically reduced.

Access to abortion has been already limited in Texas due to the HB2 law passed in 2013, which significantly increased administrative requirements for clinics that provide abortion services. As a result of this law, half of the abortion clinics shut down and never reopened, even after it was ruled unconstitutional by the Supreme Court in 2016.