Texas’s nearly complete elimination of abortion rights empowers private citizens to sue those who violate the law. An intentionally ambiguous law is overriding the legal hurdles that have held back previous attempts to limit the use of abortion.
On Wednesday, May 19, 2021, Senate Bill 8[1] (Senate Bill) was approved by the Texas Senate. The bill took effect on September 1 and is the latest in a series of measures regarding abortion rights in the United States.
The text includes a ban on abortion after six weeks of pregnancy. This does not take into account that most women are not aware of their condition so early. In addition, it is generally preferred to proceed to such interventions after 8/10 weeks to avoid certain medical complications (e.g., in case of ectopic pregnancy).
Texas is the ninth state[2] to adopt what anti-abortionists call the “fetal heartbeat bill.” It’s the idea that after the first six weeks of gestation, the embryo has a “heartbeat.” However, medical and reproductive health experts say the reference to a heartbeat at that stage of pregnancy is medically inaccurate since an embryo does not yet have a fully developed heart at six weeks gestation.
The law that has come into effect defines fetal heartbeat as “a constant and repetitive rhythmic cardiac activity or contraction of the fetal heart within the gestational sac.”
Therefore, the definition is very imprecise in regulating and limiting health care and the practice of medicine. Physicians reiterate that every patient is different and, therefore, “one-size-fits-all” laws can be very harmful. In this regard, the words of Texas abortionists are explanatory: “When I use the stethoscope to listen to a patient’s heart, the sound I hear is the typical boom-boom-boom that you hear when the heartbeat is created by the opening and closing of the heart valves. And at six weeks gestation, those valves don’t exist.”
US legislation and case law
A basic premise is that in the U.S., at the federal level, abortion has been legal since the 73′ Supreme Court decision Roe v. Wade[3]. Texas law appears to be directly at odds with that ruling and subsequent cases. Those federal decisions, in fact, had established constitutional protections for abortion before “viability,” which occurs at approximately 23 weeks of pregnancy.
The current standard for determining when and how states can limit the constitutional right to abortion was developed in Casey v. Planned Parenthood[4]. In Casey, the Supreme Court struck down the portion of a Pennsylvania law that required married women who wanted abortions to notify their husbands. In doing so, the court lowered the test for state restrictions from the very high one in Roe and created a new standard called the “undue burden” standard that would strike down a state law that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Many argue that the Texas law is an undue burden under this definition.
The real challenge to Casey will come this fall, when the Supreme Court hears arguments in a case called Dobbs v. Jackson Women’s Health Organization on the constitutionality of Mississippi’s ban on abortions after 15 weeks. Under the Casey standard, a ban on abortions at that stage is clearly a “hurdle,” but all observers believe there are at least five votes to change the definition of undue burden. To date, 22 states have laws that would further restrict access to abortion if Casey is overturned.
Despite such important precedents, federal courts have yet to block the Texas law because of its cunning structure. Federal courts have been quick in the past to block strict abortion laws because they could direct orders to the specific government officials charged with implementing the punishments. However, Texas’ ban enforcement mechanism by charging any private citizen with the ability to sue clinics has twisted that typical path of fighting abortion bans.
The next step will be an appeal to the Texas Supreme Court to declare that SB8 violates the Texas Constitution. The process is long, and the outcome is not a foregone conclusion.
The Guttmacher Institute[5], in fact, has highlighted how, in recent years, the orientation of the Supreme Court on the subject has not been solid and that the recent change in state legislation (70 restrictions in 15 states in 2021 alone) could lead to a pre-73 situation. Each state may have its own criteria and restrictions related to pregnancy termination, but overuse of such restrictions can easily lead to a de facto ban on the practice.
What reactions have arisen in the U.S. and the international community?
U.S. Attorney General Merrick Garland said Monday that the Justice Department is “urgently” exploring ways to challenge Texas’ tough new abortion law. Still, he did not specify what options are being considered. “We will not tolerate violence against those who seek to obtain or provide reproductive health services, physical obstruction, or property damage in violation of the FACE Act.”
The Freedom of Access to Clinic Entrances (FACE) Act went into effect in 1994. It prohibits any form of threatening or violent behavior toward anyone obtaining reproductive health services, typically an abortion.
Melissa Upreti, the chair of the United Nations Working Group on Discrimination Against Women, criticized Texas’ new law, SB 8, as “structural discrimination based on sex and gender at its worst.”
Many jurists argue that this is the strongest Trap Law (Targeted restrictions on abortion providers)[6] seen to date. The provision at the center of the debate is the one that provides that any individual can sue abortion doctors or people who help or intend to help a patient have an abortion.
The incentive to sue is evident within the law. In fact, if you win, you get a minimum of $10,000 in damages. Instead, if you lose, you don’t even have to reimburse legal fees[7].
Under SB 8, an estimated 7 million Texas women are at risk of losing access to legal abortions. Clinics offering the service have already begun turning away patients.
In conclusion, the U.S. will need to reflect on balancing the values of life and self-determination, which are as dear to our constitution as they are to the U.S. constitution, and address socio-cultural issues that prove divisive.
Note
[1] https://legiscan.com/TX/text/SB8/id/2395961
[2]https://www.plannedparenthoodaction.org/abortion-access-tool/US
[3]https://caselaw.findlaw.com/us-supreme-court/410/113.html
[4]https://supreme.justia.com/cases/federal/us/505/833/
[5] https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe
[6]https://www.plannedparenthoodaction.org/issues/abortion/trap-laws
[7] https://www.hppr.org/hppr-news/2021-04-28/texas-attorneys-say-gop-abortion-bills-could-open-the-door-to-unlimited-lawsuits-from-strangers
