Texas and the Constitutional Right to Abortion

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Mark Jones is a professor in the Department of Political Science at Rice University in Houston, Texas


In the wake of the recent near-total abortion ban in Texas, teaching about the constitutional right to abortion may feel like a difficult subject to broach. Students may have their own lived experiences with abortion, and emotions may run high in the classroom. However, this case is important to discuss, as the Supreme Court’s decision may determine the precedent of many more abortion-related cases.

Below is some contextual framing for the ruling and its importance, along with some questions to help guide your class discussion.

Context and Precedents

On September 1, 2021, a Texas law that effectively bans most abortions after six weeks went into effect. Following the precedent provided in two landmark cases decided in 1973 (Roe v. Wade) and 1992 (Planned Parenthood v. Casey), most expected that an injunction would be issued to prevent the law from going into effect.

Instead, in a 5-4 ruling, the U.S. Supreme Court declined to issue an injunction. This underscored the extent to which former president Donald Trump’s nomination of three pro-life Supreme Court justices changed the court’s balance of power vis-à-vis abortion.

The five-justice majority made it clear that it did not wish to signal anything about the legislation’s overall constitutionality. Rather, the majority preferred to wait until an actual case emerged where an abortion provider or enabler was sued to determine the law’s constitutionality. This was decided alongside a mechanism in which individual citizens, not the state, are empowered to enforce the ban via civil lawsuits against anyone performing or aiding an abortion.

It is likely the Supreme Court will eventually find the Texas law to be unconstitutional. However, this decision potentially foreshadows the Supreme Court utilizing one of the abortion cases on its docket to alter the constitutional right of abortion established by Roe v. Wade. This could include rolling back the period in which legal abortions (without a risk to the birthing parent’s health) may take place.

Discussion Questions About the Constitutional Right to Abortion

When discussing this abortion ban in class, consider guiding the conversation with these questions:

1. Over the past five decades, U.S. political leaders have looked to the Supreme Court as the arbiter of abortion’s legality, rather than Congress. Why might this be the case?

2.  Roe v. Wade determined that abortion is legal through 24 weeks. This has been the law of the land for 50 years. Given the advances in science and medicine throughout this time frame, do you think the U.S. Supreme Court should change the maximum number of weeks at which a legal abortion can occur? Why or why not?

3.  How can a president’s power to nominate U.S. Supreme Court justices for life terms have policy consequences beyond their term in office?

Learn more about teaching Texas politics and American government in class with the latest Cengage titles.