Texas bans abortion due to legal flaw
It’s estimated that 85% of abortions in Texas occur after six weeks of pregnancy and the new law will likely have a disproportionate effect on those already struggling to access healthcare services. By
Anti-abortion activists in the United States seeking to ban or limit reproductive rights have repeatedly been thwarted by the constitutional precedent set by the Supreme Court in 1973 in Roe v. Wade. A Texas law, which came into effect this month, appears to have found a loophole to effectively ban abortion after the sixth week of pregnancy.
The law, signed by Republican Governor Greg Abbott in May, relies on the doctrine of “sovereign immunity”, which allows someone to challenge an unconstitutional state law in a federal court, provided the respondent is a state official responsible for enforcing the law.
Senate Bill 8, or SB8, was designed to evade judicial review and effectively ban abortion in Texas by empowering and incentivising civilians rather than authorities to enforce the law. It allows citizens to sue anyone who “aids or abets” an abortion after the detection of cardiac activity in an embryo, which is usually around six weeks into pregnancy.
Women having an abortion cannot be sued under the Texas law, but those who assist them – doctors, receptionists at clinics, even Uber drivers who take patients to have an abortion – can. Those who launch a civil case against an abortion don’t need to know the patient. If their case succeeds they’re entitled to a minimum of $10,000 in damages, plus legal fees.
When signing the law, Abbott said: “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion.”
It has been repeatedly pointed out that many women don’t know they are pregnant at six weeks. After missing her period, a woman is already four weeks pregnant and if she has irregular cycles or doesn’t track them closely, it is likely the six week mark can pass before she takes a pregnancy test. It is estimated that 85% of abortions in Texas occur after six weeks and the new law will likely have a disproportionate effect on those already struggling to access healthcare services – low-income earners and young, black and migrant women.
The law does not make exceptions for cases of rape or incest. Questioned by the media, Governor Abbott dismissed the issue of rape, claiming Texas aims to eliminate the crime. Exceptions under the law are only allowed for pregnancies that endanger a mother’s life or lead to substantial or irreversible impairment of major bodily function.
SB8 specifically bans Texas officials and institutions from enforcing the abortion ban, meaning there’s no state official to cite in a legal challenge in federal court, providing Supreme Court justices with a procedural rather than constitutional choice. While “sovereign immunity” means only state officials responsible for enforcing a law can be cited as a respondent in federal court, the Texas law avoids that challenge, which has prevented most anti-abortion laws from being implemented, by putting the onus on civilians.
“It’s a radical and novel way to think about how to avoid what would have been clearly unconstitutional law under existing Supreme Court precedent, and we don’t know how the court is going to deal with this private enforcement mechanism. It creates a kind of complex puzzle,” University of Michigan Law School Professor Leah Litman told The Texas Tribune.
Abortion rights in the US rely on the Roe v. Wade judgment and are not codified in legislation. In response to the move from Texas, House Speaker Nanci Pelosi proposed making abortion rights federal law to thwart state attempts to undermine the constitutional precedent.
On 1 September, in an urgent ruling, the Supreme Court decided not to block the enforcement of the law pending judicial review. Abortion providers had named Texas officials in their case and the majority judgment ruled that “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”.
Five Supreme Court justices supported the decision while four dissented, reflecting court’s conservative majority after former president Donald Trump appointed two justices during his term. In her dissenting decision, Justice Sonia Sotomayor said: “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
The court’s decision not to intervene in the abortion ban adds to calls to reform the country’s top court, particularly for Democrats to increase the number of judges from nine to 11 to balance the conservative majority.
President Joe Biden has faced significant pressure to counter the Texas law and the US Department of Justice this week filed papers calling for a temporary restraining order or preliminary injunction pending a lawsuit challenging SB8’s constitutionality.
“It is settled constitutional law that a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. But Texas has done just that,” said the justice department in its court application.
Attorney General Merrick Garland was quoted by Politico, “This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear.”
Legal scholars appear split on the attorney general’s chances of success. What is likely, however, is that other states follow Texas’s lead. Georgia, Mississippi, Kentucky and Ohio have all passed similar laws attempting to ban abortion once an embryo’s cardiac activity can be detected but those laws have not been implemented due to legal challenges. Legislators in Arkansas, Florida, South Dakota, Indiana, Oklahoma and Idaho have announced plans to follow Texas’s lead.
The Supreme Court’s decision on SB8 raises questions about whether it will overturn the Roe v. Wade precedent in upcoming court hearings. Despite the court’s conservative majority, however, its justices have recently shown they will not always vote strictly along conservative or liberal lines.
Reproductive rights activists are continuing to fight the Texas law but anti-abortion activists and Republicans who support the law have already won. SB8 is currently in effect and abortion clinics are reported to have abided and limited their services.
Previous legislation imposing new standards on clinics in the state, which the Supreme Court later overturned, saw a significant reduction in the number of healthcare providers offering abortion. Even if the anti-abortion movement’s Senate Bill 8 is ultimately shot down in court, it has already scored a victory by making it more difficult for those providing abortion services to operate.
It is settled constitutional law that a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. But Texas has done just that