President Joe Biden announced that he will launch a “whole-of-government” effort to contest Texas’ heartbeat bill, which prohibits abortions in pregnancies of over six months of age. The bill went into effect this Wednesday after the Court first failed to respond to an emergency request to block the law and then voted 5-4 to deny the petition to outlaw the bill.
The President, who said in 2008 that he believed life begins at conception, announced that he will call the White House Counsel to direct this effort, coordinating with the Department of Health and Human Services and the Department of Justice to ensure that women have access to abortions in Texas while also exploring legal paths to defy the Texas bill, which the President called an “unprecedented assault” on Roe v. Wade, the court case that made abortion a constitutional right back in the 1970s.
The announcement highlights the incoming challenges and fights to come over the contentious issue of abortion, as many Republican states could replicate a similar scheme over that employed by Texas to ban abortions after six weeks, and Democrats expected to counter the enforcement of the law with lawsuits which could end up in the Supreme Court once again.
The country, just like its politicians, is very divided over the issue of abortion. A Gallup poll showing that 32% of Americans think abortions should be legal under any circumstances, 19% think it should be illegal under any circumstances, while 48% think it should be legal under only certain circumstances. When asked if they consider themselves as “pro-life” or “pro-choice” the country is evenly divided, with 49% saying they are pro-choice and 47% saying they are pro-life.
The Texas abortion bill is in a legal limbo
Although the Texas Heartbeat Bill is in effect, that does not mean that it has passed the proof of constitutionality, as the Court decided to not block the bill temporarily as the injunction petition “presents a complex and novel antecedent procedural questions” that have not carried enough burden for the Court to act, the Bench also decided not to block the law because it is yet clear if the state “can or will seek to enforce the law against the applicants in a manner that might permit our intervention”.
However, the Court also admitted that the applicants have “raised serious questions regarding the constitutionality of the Texas law at issue”, meaning that while the Court has allowed the Texas heartbeat bill to remain in effect, it has yet to determine if the legislation itself is constitutional. The Court even states this explicitly by saying that the refusal to issue an injunction to the Texas law is not “based on any conclusion about the constitutionality of Texas’ law”
Even if Texas’ heartbeat bill does not reach again the Supreme Court’s desk, the bench will have to make a momentous decision on abortion jurisprudence soon. The Court decided to take the case challenging the constitutionality of Mississippi’s abortion bill for next year’s term, with the state’s legal counsel asking the government to reconsider the constitutionality of the “viability” test to allow abortions, and also consider the overturn of Roe V. Wade itself.
The viability test, which could be vaguely defined as the moment when the baby can live outside of the mother’s womb, was set in the 1992 landmark case Casey v. Planned Parenthood. Mississippi’s abortion bill, enacted back in 2018, bans abortions after 15 weeks of pregnancy, however, the bill was blocked by lower federal courts in 2018 after an abortion clinic sued the state. The Court is scheduled to hear arguments of the case after its term begins in October and has until June 2022 to deliver a ruling on the issue.
With both the Texas and Mississippi bills poised to challenge the constitutionality of Roe v. Wade, both pro-life and pro-abortion activists will amp up their efforts to influence public opinion and politicians as the Court is set to deliver a potential landmark decision on abortion by the middle of 2022.