At least seven states have already expressed plans to copy Texas’s abortion ban legislation, and as many as a quarter of all states are expected to eventually follow suit after seeing lawmakers’ success at avoiding court injunctions.
According to the Washington Post, Republican officials in Arkansas, Florida, South Carolina, and South Dakota are actively working on drafting and passing legislation similar to S.B. 8, while some lawmakers in Kentucky, Louisiana, Oklahoma and Ohio say they want to see what fate the law meets before investing in their own ban.
“If the Texas legislation stands a greater chance of being upheld by the Supreme Court, certainly we would move to pass legislation that would mirror what Texas did,” South Carolina state Sen. Larry Grooms told the Post.
Florida Governor Ron DeSantis told reporters last week that “what they did in Texas was interesting,” while South Dakota Gov. Kristi L. Noem said she instructed the state’s lawyers to review the Texas law and make sure South Dakota’s laws are “the strongest pro-life laws on the books.” Meanwhile, Arkansas state Sen. Jason Rapert told the Post that there’s already template legislation for S.B. 8 that would allow other conservative lawmakers to merely fill in the blanks.
A number of these states have already tried their hand at a six-week abortion ban, and have had theirs blocked from ever going into effect—the typical course of events for an abortion ban, as any gestational limits on abortion before viability violate Roe v. Wade. But S.B. 8 introduced a new legal mechanism that has so far prevented reproductive rights group from blocking or striking down the Texas law. A provision in the law mandates that it be enforced by private citizens through civil lawsuits rather than by state officials. On Wednesday night, the Supreme Court issued a shadow docket decision allowing S.B. 8 to stand, stating that abortion providers didn’t sufficiently address the “complex and novel antecedent procedural questions” in their appeal.
The loophole has made S.B. 8 ripe for copying, along with the fact that anti-abortion lawmakers have exhausted almost every other form of abortion restriction there is. Many of the states considering passing their own version of S.B. 8 already have waiting periods, mandatory counseling, and parental consent requirements.
“In many places really the only thing left to do is ban abortion,” Elizabeth Nash, a state policy analyst at Guttmacher Institute, told the Post. “And they have momentum.”