Through technology, Texas has implemented the most restrictive ban on abortion in the U.S. since before Roe v. Wade in 1973. Governor Greg Abbott signed Senate Bill 8 (SB 8) into law on May 19, but it did not go into effect until September 1. Often referred to as the “heartbeat bill,” SB 8 is one of the most comprehensive abortion bans in the entire nation. It prohibits all abortions absent an exception to save the mother’s life once fetal “cardiac activity” is detected. The law has survived challenges through the Fifth Circuit Court of Appeals, and, thanks to a rare midnight ruling, the Supreme Court, voting 5-4, denied an emergency appeal to stop the law from being implemented.
The majority of justices declined to block the new law, but Chief Justice John Roberts — siding with the three liberal justices (Sotomayor, Breyer, and Kagan) — highlighted that “The Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.” The unsigned order reads:
“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
The law books of most states are a messy affair, and one of the reasons is that legislatures seldom reconcile laws passed with court precedent. The unenforceable law then isn’t enforced, but the prohibition remains published. Case in point, Texas’ prohibition on abortion has been on the books since 1854. When the Supreme Court held the Texas law unconstitutional in Roe v. Wade, that stopped enforcement, but the law was still on the books. Pro-life legislators successfully amended the existing law with the heartbeat component. The change made it newly enforceable, and with a kick – private persons could bring cases to do so.
SB 8 contains a “private cause of action,” which, as the name suggests, is a legal provision that allows private individuals — not the state — to enforce a law. The provision creates standing to sue for anyone at all who can allege a violation. Standing is a crucial legal hurdle to clear before any suit gets heard, so the grant here is staggering. Anyone may sue any abortion provider or support personnel who helps a woman obtain an abortion prohibited by SB 8. Suing isn’t free, however, so to sweeten the pot, the legislators added a financial guarantee to those who would enforce the law by private cause of action. Anyone who successfully sues an abortion provider will be entitled to at least $10,000 and a court order preventing the provider from performing abortions in the future.
President Biden said, “This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century.” The federal courts have not agreed with him. Texas sits in the Fifth Circuit; the Court of Appeals there, without publishing an opinion, ordered the law to stand.
SCOTUS Down the Line
The justices are scheduled to consider abortion rights this coming term in Dobbs v. Jackson Women’s Health Organization. As LN previously reported, that case is about a Mississippi law that bans most abortions after 15 weeks. Professor Mary Ziegler, the author of Abortion and the Law in America: Roe v. Wade to the Present, wrote: “While Texas has tried to avoid a confrontation with Roe and [1992 landmark case Planned Parenthood v. Casey] through its private-enforcement scheme, the Mississippi case will all but force the justices to reverse or transform the court’s most important abortion precedents.”
Read more from Scott D. Cosenza.