In Texas, a new law restricting abortion has been passed, banning all abortions after six weeks pregnancy. The law also permits private citizens to sue anyone who helps in providing an abortion. This law has been extremely controversial. While the pro-life community sees it as a step towards the goal of banning all abortions in the US, reproductive activists see it as a violation of women’s rights. This new development in the long-standing fight over abortion access could be a preview of new laws to come in other republican states.
President Biden called the bill an “unprecedented assault on a woman’s constitution rights” in a statement last week. This contrasts with what a spokesperson for Texas Right to Life, John Seago said, “The lawsuits would not be against the individuals making money off the abortion, but the abortion industry itself.”
The newly-passed bill, Senate Bill 8, also known as the “Heartbeat Act,” is one the most restrictive bans on abortion since before Roe v. Wade. Most people are not aware of their preganancy before six weeks, making this a near-complete ban on all abortions in the state. The ban also makes no exceptions for pregnancy cases after rape or incest.
However, the law states that if an abortion is produced because of a medical emergency, and a document is made by the doctor to certify the validity of said medical emergency, an abortion would be permitted. The exact nature of what kind of “medical emergency,” is not specified, leaving it up to interpretation.
In Texas, anyone who sues an abortion provider can be awarded $10,000 and a new “whistleblower” app has been set up to expose providers and people who receive abortions. The bill also restricts state officials from enforcing the abortion ban. Instead it has deputized private citizens, making them the enforcers. This protects the ban from court challenges because it is not the state itself that may be in violation of Supreme Court cases ensuring a woman’s access to abortion, like the 1973 Roe v. Wade case, or the F.A.C.E. (Freedom to Access to Clinic Entrances Act) of 1994.
The Texas bill’s extremely unorthodox nature also creates other problems for pro-choice activists seeking to challenge the legislation in court. If an abortion case is brought to court, the defendants have the responsibilty to prove that they themselves are not guilty, rather than the plaintiff proving their guilt, deviating from the procedure of a normal court case. Professor Melissa Murray of New York University, who has experience in abortion jurisprudence, said that, “The law could reasonably be subject to a wide range of interpretations,” because of how vague parts of it are.
The bill went into effect on Wednesday, September 1 after the Supreme Court voted 5-4 not to ban the bill. The Supreme court has a conservative majority, and the recent appointation of Justice Amy Coney Barrett, who was nominated by President Donald Trump after he vowed to appoint pro-life justices, has given rise to new criticism of the Court as a political instead of impartial entity.
Attorney General Merrick Garland has also criticized the bill and the United States Department of Justice sued Texas on Thursday, September 9. The lawsuit claims that Texas enacted this bill “in open defiance of the constitution.” Although the bill was not blocked by the Supreme Court, they did not vote on whether it is constitutional, giving the Justice Department an avenue to debate the constitutionality of the bill in front of the Supreme Court. The Justice Department is also seeking an injunction that will prohibit the enforcement of the law.
If the Supreme Court upholds the constitutionality of this law, it could lead other states to pursue a similar ban. Rep. Mary Elizabeth Coleman of Missouri is one of the state’s leading anti-abortion legislators and she has said that she wants to pursue a similar bill in the state. In Missouri there is an abortion ban for abortions after eight weeks pregnancy, in the process of being applied, however an injunction has prevented it from taking effect thusfar. Because the way Texas’s bill shields the government, it has become an attractive option for states looking to replicate its effects.
The Texas “Heartbeat Act” is a new development in the long existing disagreement over abortion rights and could have consequences for many other abortion cases in the future.
