On 1 September 2021, the Texas Heartbeat Act effectively banned abortions in Texas and launched a monumental challenge to constitutional guarantees in the United States. The new law, now in front of the United States Supreme Court, uses a legal loophole to avoid using enforcement measures ruled unconstitutional under Roe v. Wade in previous abortion bans. The Texas Heartbeat Act could set new guardrails for states' regulation of constitutional rights and open the door for other states to follow, including another major challenge scheduled for December.
This explainer details why the Texas legislation is unique, recent developments of the case before the Supreme Court and the law’s wide-ranging implications if it is ultimately upheld. If successful, does this overturn Roe v. Wade? If so, what could be next?
What is the Texas Abortion Ban?
The Texas Heartbeat Act, known as Senate Bill 8 (SB 8), legally bans abortions in Texas after the point of detectable cardiac activity, or six weeks into a pregnancy. It requires physicians who perform abortions to first check for foetal heartbeat and states, “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” The new law provides exceptions in the case of medical emergencies and Texas Governor Greg Abbott stated the purpose of the new act is to “protect the safety of both the mother and the child.” However, SB 8 provides no exceptions for instances of rape or incest, joining a growing number of states abandoning the exception including Louisiana, Ohio, Mississippi and Alabama. Lawyers for Texan abortion clinics asserted that 85 to 90 per cent of abortions in the state occur after six weeks, meaning the law essentially presents a near-complete ban on abortions and makes it the most restrictive law in the United States.
Under this law, anyone can file a private civil lawsuit against an abortion provider or anyone who ‘aids and abets’ a woman to receive an abortion after cardiac activity is detected. This implicates everyone from medical staff who assist in the procedure to taxi drivers who take women to the clinic.
Senate Bill 8 is unique because it does not require state enforcement, the usual reason abortion bans are declared unconstitutional by the Supreme Court. Rather, under this law, anyone can file a private civil lawsuit against an abortion provider or anyone who ‘aids and abets’ a woman to receive an abortion after cardiac activity is detected. This implicates everyone from medical staff who assist in the procedure to taxi drivers who take women to the clinic. Successful plaintiffs — that is, those who successfully prove that an individual received or helped with an illegal abortion — can be awarded damages of up to US$10,000, in addition to the reimbursement of legal fees per illegal abortion. The plaintiffs do not need to live in Texas, have any connection to the abortion or show any injury from it. In essence, the new law empowers ordinary citizens to uphold the law and removes state responsibility related to the law’s enforcement.
Since the law’s enforcement on 1 September, the costs associated, including the fact that there is no upper limit for the US$10,000 per abortion suit (meaning a single provider could be forced to pay millions for one violation), has sparked considerable concern amongst the few abortion providers left in the state. Many abortion providers in Texas stopped practising, with abortions in Texas dropping by half and clinics in nearby states seeing a significant uptick in patients from Texas.
The new law is exceedingly difficult to challenge in court, which, critics suggest, was intentional. The restrictions of SB 8 challenge seminal US Supreme Court rulings Roe v. Wade (1973) and Casey v. Planned Parenthood (1992). Roe v. Wade determined women in the United States have a constitutional right to seek an abortion within the first trimester. Casey v. Planned Parenthood protected abortion up to the point of “foetal viability” (usually around 24 weeks gestation) and, critically for SB 8, declares states’ regulations of abortions cannot create an “undue burden” for patients. By removing state enforcement, SB 8 has found a potential loophole that will be decided by the Supreme Court.
Legal challenges and recent developments
Unprecedented, complex and contentious, SB 8 has already faced several legal challenges since it went into effect on 1 September 2021.
Supreme Court declines first emergency appeal: Whole Woman’s Health v. Jackson
On 1 September 2021, the Supreme Court declined the first emergency appeal (Whole Woman’s Health v. Jackson) against SB 8 by a 5-4 vote. The emergency application filed on 13 July by Whole Woman’s Health (WWH) — a coalition of abortion providers, patients, clinics and supporters — sought immediate relief to prevent the enforcement of the SB 8 while the status of its constitutionality and precedent was determined on the basis that the bill “will cause irreparable harm.” By declining the appeal and sending the case through the lower courts, the law came into effect on 1 September.
This decline of the first emergency appeal against SB 8 is significant because several other states have passed similar 'heartbeat’ bills but each has been blocked by the courts as unconstitutional. However, the Texas Heartbeat Act’s enforcement through civil suits shields Texas officials from any legal scrutiny surrounding the constitutionality of the bill and creates a different framework to challenge the law.
The civil enforcement mechanism of SB 8 means Texas state judges and their clerks cannot be considered defendants in legal battles against SB 8’s constitutionality or enforcement. Therefore, Texas does not have to defend the constitutionality of the law in court because it is technically not involved in the law’s enforcement. Joining the dissenting judges, Chief Justice John Roberts Jr (appointed by Republican President George W. Bush) alluded to the shrewd tactics of Texas lawmakers writing, “the statutory scheme before the court is not only unusual but unprecedented… [the] consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”
Joining the dissenting judges, Chief Justice John Roberts Jr (appointed by Republican President George W. Bush) alluded to the shrewd tactics of Texas lawmakers writing, “the statutory scheme before the court is not only unusual but unprecedented… [the] consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”
In an unfiled opinion, the majority stated this case presented “complex and novel” procedural questions, but denial of the immediate relief from the law’s enforcement neither determines the constitutional status of the bill nor precludes other future legal challenges.
“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.”
Summarising the primary criticisms of the Texas ban and condemning the Supreme Court judges who upheld the law in the face of the emergency challenge, Justice Sonia Sotomayor (appointed by Democratic President Barack Obama) wrote “The Court’s order is stunning. 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.”
Weeks later on 23 September, Whole Woman’s Health filed a motion to bypass the proceedings in the Fifth Circuit which would determine whether SB 8 was constitutional and instead asked for the Supreme Court to determine whether their suit against Texas could proceed at all.
The Biden administration takes action: United States v. Texas
Eight days after the law went into effect, US Attorney General Merrick Garland announced plans to sue Texas in the US District Court for the Western District of Texas on the grounds that the Texas Heartbeat Act “illegally interferes with federal interests” and is “in open defiance of the constitution.” The Department of Justice filed a civil action case against Texas on 9 September — United States v. Texas — which sought relief from the laws enforcement until the law’s constitutionality was determined as well as injunctive relief for those facing SB 8 suits while its status is undetermined.
On 6 October, US District Judge Robert Pitman (appointed by President Obama) granted the Justice Department’s application for a temporary injunction to block the enforcement of SB 8. This meant the Texas state judiciary couldn’t accept, hear and adjudicate SB 8 claims while its constitutionality was being determined by the Supreme Court. Pitman’s 113-page order was bluntly critical of the legislation and Texas lawmakers to date. Judge Pitman wrote: “A person’s right under the Constitution to choose to obtain an abortion before fetal viability is well established. Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”
However, in response, Texas appealed Pitman’s order to the United States Fifth Circuit Court of Appeals and by Friday 9 October (just over 48 hours after Pitman’s ruling), the court reinstated the ban in a 2-1 vote, meaning SB 8 lawsuits could resume.
To the Supreme Court: United States v. Texas
On 18 October, the Department of Justice (DOJ) filed a new emergency appeal to temporarily block enforcement of the law while legal challenges over its constitutionality progressed in the lower courts. The Biden administration’s challenge asked the Supreme Court to vacate the Fifth Circuit’s ruling on the basis that the United States federal government should be able to sue the state of Texas because the law violates the Constitution and has broad implications in its legal precedent.
On 22 October, the US Supreme Court refused the DOJ’s emergency appeal, allowing SB 8 to remain in effect. Critics argue that the decision to refuse injunctive relief defies the standard for contested new laws, which are usually delayed until appeals are heard and decided. Justice Sotomayor considered this in her opinion, “by delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas… whatever equities favor caution in staying a state law under normal circumstances cannot out weight the total and intentional denial of a constitutional right to women while this Court considers the serious questions presented.”
Latest development (1 November): Whole Woman’s Health v. Jackson and United States v. Texas before the Supreme Court
Due to the new precedent surrounding the use of private civil suits and the potential for harm, outlined in both the cases of WWH v. Jackson and United States v. Texas, the court agreed to accelerate its review of SB 8 with oral arguments commencing in the US Supreme Court on 1 November.
Both WWH and the DOJ have argued that the terms of SB 8 violate the Supremacy Clause of the Constitution which prevents state statutes from interfering with the federal government’s ability to exercise its constitutional powers. By listening to these arguments, the Supreme Court will address whether either WWH or the DOJ can proceed in their suits against the state of Texas and state officials. Without being able to sue the state, the only way to prevent the enforcement of SB 8 before its constitutionality is determined is to have a test case — in other words, someone would have to be sued for violating SB 8 first.
Implications for abortion rights in the United States
Throughout the United States, abortion is legal and protected as a constitutional right by the landmark Roe v. Wade (1973) decision. While abortion has long been a divisive issue, more than half of US adults agree that abortion should be legal in most cases. Nonetheless, the availability, accessibility and restrictions surrounding abortion vary considerably from state to state, with some states making it far more difficult than others to receive abortions.
Generally, conservative and Republican-led states have stricter laws surrounding abortions. This trend is consistent with public opinion data. In 2019, United States Studies Centre polling revealed Republican voters are more likely to support a total ban on abortion, with 22 per cent (compared with five per cent of Democrat voters) stating abortions should never be permitted and only 15 per cent (compared with 68 per cent of Democrat voters) agreeing a woman should be able to obtain an abortion as a matter of personal choice.
Historically, several of the most restrictive regulations have come from Texas. For example, between 2010 and 2016, Texan legislators passed several Targeted Regulation of Abortion Providers (TRAP) laws, which established new and more stringent regulations for abortion clinics “for women’s health and safety.” While several of these regulations are generally required by health service providers, most of them were considered medically unnecessary for the procedures provided by abortion clinics. Instead, the laws put a significant burden on abortion clinics, which critics suggest was their primary objective. While the laws were overturned (5-3) in the 2016 Supreme Court ruling Whole Woman’s Health v. Hellerstedt, their impact on abortion providers in Texas is clear. More than half of the state’s abortion clinics closed and the number of abortions in 20 per cent of the state’s counties halved by 2017.
The Texas Heartbeat Act follows several actions in the state to restrict the circumstances under which women can receive an abortion. However, by outlawing abortions at the point of detectable cardiac activity, the law is a direct challenge to two landmark legal cases that protect women’s right to obtain an abortion — Roe v. Wade (1973) and Casey v. Planned Parenthood (1992).
Roe v. Wade (1973)
The landmark Roe v. Wade decision set a national precedent and guideline for how abortion could be made available and regulated across the United States. The 1973 Supreme Court ruling protects a woman’s right to have an abortion without the interference of states in the first trimester of pregnancy.
Before Roe v. Wade, abortion was illegal, without exception, in 30 states. The decision settled a two-year-long class-action lawsuit against Texas’ abortion laws which prohibited abortions unless the mother’s life was in danger. The court ruled that the Texas statute forbidding abortions was a violation of women’s constitutional right to privacy because the decision to have an abortion is a personal one, not one that can be determined by the powers of the state. Roe also determined that state statutes regulating abortion must be subjected to “strict scrutiny” as a woman’s right to an abortion concerns fundamental constitutional rights.
Planned Parenthood v. Casey (1992)
The 1992 case of Planned Parenthood v. Casey replaced the trimester framework of Roe with a stage of foetal viability — the point at which a foetus can sustain life outside the womb. In doing so, the case gave the greater ability for states to regulate abortions during the first trimester and introduce measures such as mandatory waiting periods, terms around parental and partner consent, and mandatory counselling.
Casey also weakened the “strict scrutiny” standards of statutes concerning abortion, and instead evaluated state abortion restrictions on the standard of "undue burden." In doing so, Casey changed abortion from an unqualified right to a qualified right, meaning women seeking an abortion have the right to be free of undue burdens imposed by the state, as opposed to a fundamental right to have an abortion. Additionally, the ruling emphasised the protection of abortion under the Due Process Clause of the Fourteenth Amendment, which declares no state shall “deprive any person of life, liberty, or property, without due process of law.”
Senate Bill 8 has largely been considered unconstitutional by critics due to its outlawing of abortions before the stage of “foetal viability” and, as WWH had argued in its first emergency appeal to the Supreme Court, by causing “undue burden” for women seeking an abortion in Texas. The US Supreme Court has not yet decided whether SB 8 is unconstitutional. However, given the unprecedented nature of the law, any rulings on SB 8 will have important implications for future abortion legislation in the United States.
A direct challenge to US abortion law: Dobbs v. Jackson Women’s Health Organization
The Texas Heartbeat Act follows a recent string of more restrictive abortion laws that have passed through Republican-led state legislatures. In 2019 alone, 17 states enacted new types of abortion restrictions, with 25 new abortion bans signed into law. Among these recent restrictions is another highly consequential state law, the Mississippi Gestational Age Act of 2018, which seeks to ban all abortions in Mississippi after 15 weeks (well before the stage of “foetal viability”) except in the case of medical emergencies or several foetal abnormalities.
If they overturn Roe v. Wade and allow for the “any person” provisions of SB 8 to prevail, what could be next? The implications of civil enforcement mechanisms could have implications for other rights related to the Fourteenth Amendment right to privacy, including gun ownership, religious rights and same-sex marriage.
Laws banning pre-viability abortions have each been dismissed by federal courts until SB 8. This includes the Mississippi ban which was blocked by the Fifth US Circuit Court of Appeals in the Dobbs v. Jackson Women’s Health Organization ruling of 2018. In mid-2020, Mississippi, dissatisfied with the Fifth Circuit’s ruling, petitioned for a Supreme Court review of Dobbs v. Jackson Women’s Health Organization arguing the Courts should take into account states’ interests and advancements in medical knowledge that change the time of "foetal viability," and asked the US Supreme Court to determine whether all pre-viability bans on abortions violate the Constitution.
On 17 May this year, the Supreme Court agreed to hear Dobbs v. Jackson Women’s Health Organization and scheduled oral arguments for 1 December 2021. Dobbs v. Jackson poses the most serious challenge to the terms of Roe v. Wade since the Casey ruling almost 30 years ago and has quickly become one of the most hotly anticipated cases on the Supreme Court docket in years.
The momentum surrounding SB 8 complicates the Dobbs case. If SB 8 is upheld, then it will establish a new precedent for pre-viability abortions and see the terms of Roe v. Wade effectively overturned. If this occurs, it could have a domino effect and impact the course of abortion law in at least 24 other states seeking to pass new and more restrictive abortion legislation.
It also raises questions about the legal implications of the now more conservative-leaning US Supreme Court. Of the nine current Supreme Court Justices, six were appointed by Republican presidents. In fact, three of the five judges who voted in favour of upholding SB 8 in the first emergency challenge on 1 September — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were Trump administration appointees who espoused more conservative opinions towards abortion rights.
Conclusion
In all, SB 8 tests the concept of precedence in Supreme Court decisions. The question is, if they overturn Roe v. Wade and allow for the “any person” provisions of SB 8 to prevail, what could be next? The implications of civil enforcement mechanisms could have implications for other rights related to the Fourteenth Amendment right to privacy, including gun ownership, religious rights and same-sex marriage.
Hearing the arguments of WWH v. Jackson and United States v. Texas this week, the possibility for SB 8 to set new guardrails for states' regulation of constitutional rights is front and centre. As DOJ solicitor general Prelogar argued on 2 November, “Texas’s position is that no one can sue, not the women whose rights are most directly affected, not the providers… and not the United States. Our constitutional guarantees cannot be that fragile and the supremacy of federal law cannot be that easily subjected to manipulation.”