Abortion in Texas has become (almost) illegal

From 1st September 2021, it has become illegal in Texas to have an abortion six weeks after the start of the pregnancy because of a new unique law of its kind that opens a new frontier in the clash between Washington, individual states and the Supreme Court.

What is the law about?

Signed in May by Texas Governor Greg Abbott, the Senate Bill 8 – also called the Texas Heartbeat Act – makes any abortion after the sixth week of pregnancy illegal, barring cases where the mother’s life is in great danger. This temporal term coincides with the first possibility of identifying the “heartbeat” of the embryo, coming from a heart still far from being fully formed. It corresponds to a period of time in which many people do not notice that they are pregnant. In fact, this law makes abortion completely illegal in a state of nearly 30 million people, as 90% of abortions occurs after this date.

However, what differentiates this bill from those in other states is the way in which those who have helped the person terminate their unwanted pregnancy are tried. In fact, the S.B.8 states that offenders cannot be brought to court by civil servants, but only by ordinary citizens residing in any part of the United States. If it becomes known that a person has an abortion after the first six weeks, a citizen can connect to the “Pro Life Whistleblower” website (which can only be accessed from US territory) and report not only the doctor who performed the operation, but also anyone else who “helped” the patient, such as the association that paid for the operation, but also – for example – the Uber driver who accompanied them to the clinic. The defendant must therefore defend themself in court and in the event of defeat they must compensate the plaintiff for the legal costs, plus a reward of at least $10,000. In the event that the complainant loses, however, they do not have to pay the legal fees of the accused, which is not refundable.

Although the law makes no exception for pregnancies resulting from sexual violence, in addition to state employees, the only ones who cannot report the abortion are those who have sexually assaulted the person requesting the abortion, although it is not clear whether to establish that a declaration of the victim is enough or a sentence that establishes the guilt is needed. In addition, the ban does not apply to anyone associated in some way with the perpetrator, such as their relatives or friends.

Another aspect on which the law is not clear is its jurisdiction: the S.B.8 is a state law, thus, in theory, it should only apply within the borders of Texas. However, the lawsuit can be brought by any US citizen who may not only have no connection to the person getting the abortion, but does not even have to live in Texas. This has raised doubts about the possibility of bringing a trial even against those who, outside the borders of the state, help Texans to end their pregnancies. And if it seems difficult to imagine a lawsuit against a doctor who lives and works in another state, the same cannot be said, for example, for the mother of an underage girl who travels with her outside state borders to help her have an abortion. Although the person who terminates the pregnancy cannot be prosecuted, this new way of applying the ban and the suddenness with which the law was approved and implemented has created a lot of confusion and fear. The possibility that not only your family member, but also the person sitting next to you at the bar could, if they gather enough information, sue you for helping someone have an abortion, has immobilized the situation in Texas.

The judgment of the Supreme Court

In the United States, other than Texas, there are twenty states that have tried to enact “Heartbeat bills”, i.e. laws that limit abortion in some way around the question of the heartbeat of the embryo. These measures are very different from each other, some simply require the hospital to make the mother hear the heartbeat of the embryo before aborting, others limit the reasons why a person can have an abortion, others reduce the window of time to perform the procedure under the 24 weeks granted at the federal level.

However, what many have in common, aside from the case of Oklahoma that goes into effect on November 1st and prohibits abortion after the six weeks, is that they have been either banned or temporarily blocked at the level of the state courts, or, more commonly, in federal ones. Most of these laws were enacted between 2018 and 2019, a non-coincidental period, and were written with the primary intent of being blocked by a Federal Court. In fact, the simplest way to reach the final goal of those who wrote these rules, that is overturning Roe v. Wade – the 1973 Supreme Court sentence that legalized abortion – is to write provisions in direct opposition to this law so as to lose all appeals to the minor courts up to the Supreme one, which has the power to annul his own sentence and make the procedure illegal throughout the United States. The timing is not accidental because after Donald Trump’s appointments to Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett the Court has reached a conservative and openly anti-abortion majority after many years. Indeed, in December, the Nine will consider the case of Mississippi, which makes abortion illegal after fifteen weeks and which, if accepted, will have a direct impact at the federal level.

In this context, the Texas case represents an exception since it has already been considered by the Court, but it has entered into force anyway, and its peculiar nature is what made it possible. On September 1st, thanks to a procedure called certiorari before judgment, which is a special measure that allows a case to skip the minor courts and immediately reach the last, the Supreme Court examined Senate Bill 8 but refused to block it. This vote was carried with a majority of five judges against four, with Chief Judge John G. Roberts Jr. joining the three members of the court pushing for the blockade. The unsigned majority opinion stated that doctors who had challenged the law had failed to support their case efficiently, and that the court would not yet rule on the constitutionality of this statute, whose structure was defined by Roberts as “unprecedented”.

In his dissenting note, Roberts also writes that “although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue”, something that will be done “when that question is properly presented.” He further stated that he would have temporarily blocked the rule while appeals in the lower courts went on, but that the motion did not pass. However, getting this law to the Supreme Court is much more difficult and the problem is that usually a lawsuit that tries to block a law because of its unconstitutionality appoints state officials as defendants. The S.B.8, which prevents state officials from enforcing it and delegates to individuals the responsibility of suing those who break it, was written with the concrete goal of drastically reducing abortions in the state of Texas and challenging Roe v. Wade.

Is the law effective?

One month after its entry into force, the law has proved very effective in preventing abortions in the state, despite the fact that more and more people are resorting to voluntary termination of pregnancy at home, buying abortion pills on the internet. However, pharmacological abortion still requires a prescription and can only be practiced up to the eleventh week of pregnancy, since afterwards it becomes more dangerous and less efficient. Two lawsuit were filed against Alan Braid, a doctor who wrote an article in the Washington Post entitled « Why I violated the extreme abortion ban in Texas”: the first was brought by Oscar Stilley, described in the complaint as “disbarred and disgraced former Arkansas lawyer”, who motivated his decision by invoking the importance that the Law has in American society, despite the fact that he is not personally against abortion; the second was deposited by Felipe N. Gomez from Illinois. Meanwhile, the Justice Department, through its Attorney General Merrick B. Garland, is suing Texas precisely over the constitutionality of the Heartbeat Act, as the Supreme Court had bypassed the matter. “This kind of scheme to nullify the Constitution of the United States is one that all Americans should fear,” Merrick Garland said in a news conference at the Justice Department. “If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents.”