The United States Supreme Court (SCOTUS) on Wednesday late night in an unsigned 5–4 decision refused to block the new Texas abortion law which bans abortions after six weeks. SCOTUS however did not conclude on the constitutionality of the Texas law thereby keeping other challenges to the law open.
Since the "Texas Heartbeat Bill" or SB 8 kicked in at midnight on September 1, and the court's order came 24 hours later, several abortion clinics had already stopped providing services to women who are pregnant beyond six weeks.
Wednesday's decision is significant because this fall, SCOTUS is geared to hear Mississippi state's challenge to its historic 1973 in Roe v Wade which protected a pregnant woman's right to opt for an abortion without excessive government restriction.
"Texas SB8 will impair women's access to health care and, outrageously, deputizes private citizens to sue those they believe helped another person get a banned abortion. It's a blatant violation of the right established under Roe V. Wade. We will protect and defend that right," US President Joe Biden tweeted.
"The Court's cowardly decision to uphold a flagrantly unconstitutional assault on women's rights and health is staggering. The House will bring up Congresswoman Judy Chu's Women's Health Protection Act to enshrine into law reproductive health care for all women across America," Speaker Nancy Pelosi tweeted.
"The Supreme Court ruled 5-to-4 to let a new Texas anti-abortion law stand, even as legal challenges against it continue. Not blocking "this unconstitutional law means that it will be in effect in Texas for the foreseeable future," Nancy Northup, Director at the Centre for Reproductive rights said.
BOOM looks at what Texas' new abortion law is and the uproar surrounding it.
What is the Texas Abortion Law?
Texas Governor Greg Abott on May 19 signed off on the "Texas Heartbeat Bill" that bans abortions as soon as a fetal heartbeat is detected – before some women know that they are pregnant. There are no exceptions for pregnancies arising out of rape or incest. The sole exception is in the event of medical emergencies only.
Abortion providers cannot perform the procedure once they detect "cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac".
Officially, the Texas government cannot ban abortions because the 1973 ruling in Roe v Wade prohibits state officials from preventing a pregnant woman to exercise her right to abort the fetus before it is viable (generally thought to be at 24 weeks). In order to circumvent this order, Texas empowered private citizens, including complete strangers to sue anyone who "aids or abets" an abortion after six weeks. In this way, private citizens are enforcing a ban on abortions and not state officials.
The plaintiff (the one who complains) may file their suit in any county of their choice even if it is different from the county where the proposed abortion may take place. If the plaintiff wins, then the accomplice (or the one who aids or abets an abortion) will have to fork over US$10,000 per abortion plus lawyers' fees.
The bill's language is sweeping, and the accomplice may include anyone – doctors, nurses, clinic staff. Any insurance company that reimburses the cost of the abortion after six weeks. The patient's family members, their clergy, or rape crisis counselor who facilitate the abortion. Even the individual who drives the patient to the clinic for the abortion can be held liable.
A research brief released by the University of Texas at Austin says that the law will "particularly affect Black patients and those living on low incomes or who live far from a facility that provides abortion because they often experience delays obtaining care".
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What did SCOTUS say?
The majority (unsigned) decision was rendered by the court's five Conservatives judges — Justices Clarence Thomas and Samuel A. Alito Jr., along with President Donald Trump nominees Justices Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett — who refused to interfere with the law.
All the four dissenters – Chief Justice John Roberts Jr. along with Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan penned separate dissenting notes.
Chief Justice Roberts observed that "the statutory scheme before the Court is not only unusual but unprecedented."
"The Court's order is stunning," Justice Sotomayor said in her heated dissent. "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," she wrote.
"In effect, the Texas Legislature has deputized the State's citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors' medical procedures," Justice Sotomayer wrote. She was joined by Justices Breyer and Kagan in her opinion.
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What is the debate around abortion laws in the US?
Abortion laws in the United States are a deeply divided issue. Abortion in the US is legal, thanks to Roe v Wade, however abortions laws and restrictions vary from state to state. Roe v Wade was a watershed decision for women rights. It gave the woman a choice to exercise her right to consult a doctor and end a pregnancy before 24 weeks, even in states where anti-abortion sentiments are strong.
On May 17, 2021, SCOTUS decided to reconsider its 48-year-old decision in Roe v Wade. The State of Mississippi has challenged the 1973 ruling Roe v Wade and the subsequent 1992 endorsement to abortion rights in Planned Parenthood v. Casey. Mississippi has also asked SCOTUS to uphold its 2018 law that bans abortions after 15 weeks.
"Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law — and, in doing so, harmed this Court," Mississippi's brief states. SCOTUS is expected to hear the case this fall, and the decision is expected to come by the summer of 2022.
Critics believe that there's a real concern SCOTUS will overrule its 48-year-old decision. The critics have attributed their concern towards the majority held by ultra-conservative judges in SCOTUS.
In the past two years, spurred by the possibility that Roe v Wade may be overruled, at least 15 US States have passed bills imposing a complete or near-total ban on abortions.
