February 29, 2024

Is Roe v Wade at risk after SCOTUS declined to void Texas heartbeat bill?

Reports of its death are premature

The US Supreme Court has declined to hear a challenge to a Texas law which bans abortions after a foetal heartbeat is detected. This has effectively closed abortion clinics in Texas, as a heartbeat can be detected at about 6 weeks. Women who want abortions will have to travel to neighbouring states.

For abortion supporters this is Armageddon. Writing in The Guardian, two feminist activists declared: “Since Roe v Wade was decided nearly 50 years ago, abortion opponents have been plotting its demise. Now the end may be near. Feminists need our own plan to advance reproductive freedom. That means preparing for a post-Roe world.”

President Joe Biden denounced the law as “extreme”. He declared that he would launch a “whole-of-government” response to oppose the law.

For abortion foes, it is a sweet victory. “We want to give that little Texan in the womb who has a heartbeat, a chance to see their full potential,” said Lieutenant General Dan Patrick. The media reported that politicians in Arkansas, South Dakota and Florida are considering a version of the Texas six-week abortion ban in their states.

But much of the reaction to the ban is hyperbolic. While Roe v Wade, which made abortion a constitutional right in the US in 1973, is clearly under threat, the Supreme Court clearly declared that its decision was made on procedural grounds and did not touch upon constitutional issues.

The problem for pro-abortion groups in Texas is that the new law has been very cleverly drafted. It does not criminalise abortion or abetting an abortion. Instead, it permits private citizens, even non-residents of Texas, to launch a civil suit against abortion clinics. This tactic removes the state government from the complaint and makes it difficult for abortion clinics to create a test case to bring before the Supreme Court. At the same time anyone involved in an abortion is in danger of copping a US$10,000 fine plus substantial legal costs.  

So the pro-life legal victory is a temporary one. Litigation will continue in lower courts. A more substantial case has been brought by the state of Mississippi, which will be probably heard later in December with a decision handed down next year.

In the meantime, lawyers are fretting about the legal fall-out of this unusual tactic.

“I confess that I have very serious reservations about the Texas legislation,” wrote David French, a pro-life pundit at The Dispatch. “The reason why is simple—it represents a clever way to engineer temporary deprivations of constitutional rights.”

Imagine a different scenario. Let’s imagine that a state or city bans the sale of, say, all semiautomatic rifles or handguns. But instead of enforcing the ban directly, it states that citizens can sue any person or corporation who sells a gun and any person or corporation who aids or abets the sale of a gun. Such a provision would be blatantly unconstitutional, but it may take time to resolve the issue—time that could cost a person the ability to defend themselves from deadly violence.

Michael Cook is editor of BioEdge

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