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Earlier this year the Texas legislature passed a bill prohibiting abortions after there is a “detectable fetal heartbeat”, effectively banning abortions after the sixth week of the pregnancy. The legislation came into effect today after the Supreme Court declined to hear an emergency request by pro-abortion activists who asked for the Court to block the legislation to come into effect.
The court had successfully avoided engaging in the issue of abortion during its first year with a 6-3 conservative majority with the Court avoiding to take any major abortion case during the 2020-2021 term. The Court also ruled on either non-controversial issues or delivering narrow interpretations that could harness enough support from both sides of the ideological divide.
Today’s decision not to block the Texas abortion law could provide insight into the Court’s approach towards abortion litigation in the future, with the bench set to listen next year the constitutionality of the Mississippi abortion law, where state officials have asked the bench to consider overturning the landmark case Roe v. Wade, which made abortions a constitutional right back in the 1970s.
As expected, abortion activists have decried the ruling, with President Biden saying that the law “blatantly” violates constitutional rights and that it “significantly impairs women’s access to the health care they need”. Pro-life advocates have lauded the Texas legislation, with Live Action founder Lila Rose saying ” Right now in the great state of Texas, every single child with a detectable heartbeat is legally protected from being killed by the violence of abortion. This is a historic step forward for basic human rights”.
What does the Texas Abortion law says?
The Texas bill, called the Texas Heartbeat Act, explicitly prohibits any type of abortion procedure after a heartbeat is detected and it does not make an exception for cases of rape or incest. A key difference between this legislation and other pro-life bills introduced throughout the country is that it allows for private citizens to directly sue anyone who has carried out an illegal abortion, with the plaintiff entitled to up to $10,000 if the lawsuit is successful.
This clause of the bill is crucial, as abortion activists and interest groups have tended to sue the public officials who are in charge of enforcing the law, as the Attorney General. However, by allowing private citizens to play a key role in the enforcement of the law, the Texas legislature has successfully prevented pro-abortion groups to apply the same technique with the Texas heartbeat Act.
Although the Court has dismissed the emergency request to block the Heartbeat Act, it has yet to rule over the issue of its constitutionality. Abortion clinics could and probably will sue the Texas government over the Act if they get a lawsuit over an illegally performed abortion. It remains to be seen, however, if abortion activists will try to take this case all the way up to a conservative-dominated Supreme Court.
While the bill has effectively become law and many abortion clinics in Texas have decided to stop appointments to perform abortions, the practical effects of the law are yet to be determined.
For example, Travis County District Court Judge Amy Clark Meachum issued an order prohibiting a regional pro-life group to bring up enforcement lawsuits against abortion clinics, and pro-life advocate John Seago has said to the Wall Street Journal that his pro-life organization will not be issuing enforcement lawsuits, for the time being, assuming that clinics are complying with the new statute.
What does this mean for the future of the issue on abortions?
The Texas example could be followed by various states throughout the nation, as many of them have already passed some version of a heartbeat bill. The Court’s refusal to act in an emergency order could offer a glimpse of hope for the success of similar legislation and the proviso that allows private entities to aid in the enforcement of the law could significantly hinder the ability of pro-abortion groups to effectively stop the implementation of the law.
Abortion activists have said that they would continue to challenge the constitutionality of the bill in the federal court system. However, in the meantime, abortion for babies over six weeks of age will remains strictly prohibited in the Lone Star State.
However, the Texas law is not the only crucial issue that could determine the future of abortion jurisprudence in America. The Court’s decision to hear the case of Mississippi’s abortion law next year will prove to be a decisive case in the legal fight over abortion, as the Court will have to decide if states could dismiss the current standard of “viability” when drafting their abortion laws, if the Court rules that states can prohibit abortions before the viability threshold is reached, then is very possible that laws like Texas’ are implemented in a large scale across the country.
Daniel is a Political Science and Economics student from the University of South Florida. He worked as a congressional intern to Rep. Gus Bilirakis (FL-12) from January to May 2020. He also is the head of international analysis at Politiks // Daniel es un estudiante de Cs Políticas y Economía en la Universidad del Sur de la Florida. Trabajo como pasante legislativo para el Representate Gus Bilirakis (FL-12) desde enero hasta mayo del 2020. Daniel también es el jefe de análisis internacional de Politiks.