By Michael Hernandez
WASHINGTON, D.C.—The U.S. Supreme Court is hearing legal briefs this week on the constitutionality of the Texas Heartbeat Act signed into law by Gov. Greg Abbott in May of this year that bans abortions upon detection of a fetal heartbeat which can occur as early as six weeks into pregnancy.
The Texas bill, SB 8, requires that abortion providers check for a fetal heartbeat before performing an abortion and bans them from carrying out the procedures if one is detected. It makes exceptions “if a physician believes a medical emergency exists,” but not for instances of rape or incest, citing that “public and private agencies provide …emergency contraception.”
The bill allows any private citizen to sue Texas abortion providers who violate the law, as well as anyone who “aids and abets” a woman getting the procedure. However, abortion patients cannot be sued. The person bringing the lawsuit is entitled to at least $10,000 in damages if they prevail in court. During Supreme Court questioning Nov. 1, Texas clarified that the person bringing the lawsuit would need to have some connection to the actual abortion procedure.
On Sept. 1st, the U.S. Supreme Court (5-4) declined an emergency petition to block the Teas abortion law allowing the law to take effect. However, this action resulted in the Department of Justice to join Planned Parenthood in blocking the law with Attorney General Merrick Garland issuing a statement on Sept. 6 that the “Justice Department will urgently explore all options to challenge SB8 in order to protect the constitutional rights of women and other persons, including access to an abortion” and will move forward with the FACE Act, a 1998 law that “prohibits threats to” a person seeking reproductive health services or of providers.
The abortion industry sued Texas and won at the district court level as U.S. District Judge Robert Pitman of Austin ruled against the Texas law and gave a 113-page order. However, this ruling was overturned as the Fifth Circuit Court reinstated the law holding that abortion clinics could not sue to stop enforcement of the law in federal court because the defendants sued had no authority to enforce the law. This ruling resulted in the Biden administration appealing and the U.S. Supreme Court deciding to rule on the merit of the case this week.
Texas joins South Carolina, Oklahoma and Idaho in codifying bans this year on abortion at the outset of a fetal heartbeat. Also, this year, Arkansas and Oklahoma have enacted near-total abortion bans and Montana has banned abortions at 20 weeks. However, none of the bills have gone into effect and neither have any of the 10 gestational bans which ban abortions past a certain point in pregnancy that passed in 2019 and 2020.
Texas Senator Bryan Hughes introduced the Texas Heartbeat Bill with a companion bill HB 1515 filed by Texas Representative Shelby Slawson. The Senate bill was the bill approved by both legislative chambers. The anti-abortion legislation was inspired by former Stanford law professor Jonathan F. Mitchell who proposed the framework for the bill in a 2918 Virginia Law Review article.
The U.S. Supreme Court will take up (on Dec. 1st ) the constitutionality of a Mississippi abortion law, Dobbs v. Jackson Women’s Health Organization, which prohibits abortions after 15 weeks of pregnancy except in cases of medical emergencies of fetal abnormalities.
Mississippi’s 15-week abortion ban, was signed by then Republican Gov. Phil Bryant as a law in 2018 but a federal judge struck down law in November 2018. However, the 5th US Circuit Court of appeals upheld that ruling in December 2019. The Dobbs case is a direct challenge to Roe v. Wade—the landmark 1973 Supreme Court decision legalizing abortion nationwide prior to viability of the baby which can occur at around 24 weeks of pregnancy. Currently, the U.S. Supreme Court consists of a 6-3 conservative majority.
Finally, another case working its way through the court system is South Dakota’s informed consent bill signed by Governor Kristi Noem—which requires counseling be provided for women seeking abortion from a third-party pregnancy center in order to ensure a pregnant woman is truly informed on the abortion procedure before receiving an abortion.
Michael Hernandez, Co-Founder of the Citizens Journal—Ventura County’s online news service; editor of the History Makers Report and founder of History Makers International—a community nonprofit serving youth and families—is a former Southern California daily newspaper journalist and religion and news editor. He worked 25 years as a middle school teacher in Monrovia and Los Angeles Unified School Districts and is now working with the Redding Elementary School District. Mr. Hernandez can be contacted by email at [email protected].
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Thanks Michael
This will be an interesting court decision.