By Leonora Willett (CM ’25)
Nearly 50 years on, the landmark 1973 decision Roe v. Wade is far from settled. With the support of anti-abortion groups, state legislatures are passing newer and more restrictive laws counter to Roe v. Wade. With the changing composition of the Supreme Court, women’s Constitutional rights to an abortion are in question.
With the support of Texas Alliance for Life, a pro-life organization, Texas has become one of the first states to successfully pass and enact a restrictive abortion bill. The Texas State Legislature passed Senate Bill 8 earlier this year, and it went into effect on September 1st, 2021. Better known as the Texas Heartbeat Bill, the law prohibits abortions after the detection of an unborn child’s heartbeat, which normally happens at the six week’s gestation. Strikingly, there are no exceptions for rape or incest. Even more, if a woman receives an abortion after the gestation period, a court will be required to issue an order preventing the woman from recieving a future abortion. As a result, courts will have extensive insight into a woman’s sexual activity. Unsurpsiginly, pro-choice groups and abortion clinics alike are battling various Texas officials over the constitutionality of Senate Bill 8.
However, SB8 is unique among anti-abortion laws. It places the responsibility on civilians to sue abortion providers for performing abortions, instead of state or public officials; civilians are given monetary rewards for intitating such lawsuits in the form of damages. Texas will offer anyone — even a non-citizen — a minimum of $10,000 for providing a successful suit, and recover the legal fees . There are concerns that this new law will result in anti-abortion ‘bounty hunters’. Anti-abortion group Texas Right to Life counters that only individuals making money off of abortions and contributing to the industry are those who will have lawsuits brought against them. And, it’s not just the woman receiving the abortion that can be sued: anyone helping her in the situation is susceptible, like a friend offering support or someone who drives them to an abortion clinic.
Also, because state officials, like the police and local prosecutors, are not tasked with enforcing the law, defenders of the law claim constitutional protections do not need to be enforced. The lead author of SB8 Senator Bryan Hughes echoes this, and also furthers that protecting innocent human life is of utmost importance. Critics of the Heartbeat Bill claim that private individuals are acting as state actors, and are working with permission from the government, and should therefore be subject to constitutional limitations. They also argue that if Texas skirts constitutional protections by using citizens as enforcers of the law, other states could follow suit and use Texas’s model to restrict gun ownership rights and hate speech. It is unclear whether or not private-suit enforcement mechanisms will survive challenges in the Supreme Court.
After the Supreme Court did not suspend Senate Bill 8 on multiple occasions, claiming “complex and novel” procedural difficulties in interpreting the law, it was back to district courts to battle out the legalities of the matter. The U.S. Court of Appeals for the Fifth District has repeatedly kept the law in place after a federal district judge had blocked it. President Biden’s administration also took action. His administration has asked the Supreme Court to lift their decision to keep the law in effect on October 18th. And in early September, the Department of Justice sued the state of Texas, claiming SB8 is a clear violation of the Supremacy Clause and equal protection under the 14th Amendment. The Supreme Court will review the Texas Heartbeat Bill on November 1st, 2021.
While most of the attention is currently on Texas, other states have passed similar “Heartbeat Bills,” to varying success in the courts. For example, Arkansas’s legislature passed their own such law, only to have it struck down in the district courts. U.S. District Judge Kristine Baker, a federal judge who blocked Arkansas’s abortion ban, explained how without injunctive relief, women would face threats to their constitutional rights. In ten other states, legislatures have enacted heartbeat bills, all of which are not in effect due to court intervention. Nonetheless, the nuances in Texas’s law have allowed it to evade challenges in court.
Whatever might come from the court challenges in Texas, the attention is soon to shift to Mississippi, as the Supreme Court will soon hear arguments for another restrictive abortion law. In 2018, the Mississippi legislature passed the “Gestational Age Act,” which prohibits abortions after the fifteenth week of pregnancy, except in the cases of medical emergencies or fetal abnormalities. The constitutionality of the law is being challenged in Dobbs v. Jackson Women’s Health Organization. To many groups, the Gestational Age Act seems like an “undue burden” which would render it unconstitutional. Whether it truly is remains to be determined: the case will be introduced to the Supreme Court on December 1st, 2021.
The ultimate questioned raise to the Court is the constitutionality of pre-viability elective abortions. As the makeup of the Supreme Court has changed with new appointees, the ruling could change. Mississippi’s attorney general Lynn Fitch asked the Supreme Court to overturn Roe v. Wade, with 12 GOP governers following, also asking the court to rule in favor of the restrictive law on abortion. If ruled constitutional, those governors could be free to impose abortion restrictions on a statewide level.
The Supreme Court is at a crossroads when it comes to the right to an abortion. They must decide whether or not citizens can do the “dirty work” for the state and “prosecute” individuals. But even more consequential, a more conservative Supreme Court will soon determine whether or not to uphold Roe v. Wade, or rule in favor of Mississippi’s restrictive abortion ban, forever changing the future of women’s reproductive rights.
