By Calvin Freiburger
The U.S. Supreme Court formally denied the abortion lobby’s request to block the Texas Heartbeat Act Wednesday evening, voting 5-4 to let the historic law take effect while arguments on the constitutional merits of abortion restrictions work their way through the judicial system.
Signed in May by Republican Gov. Greg Abbott, the Act requires abortionists to screen for a preborn baby’s heartbeat and prohibits abortion if a heartbeat can be heard (generally as early as six weeks), with exceptions only for medical emergencies.
The law relies on a unique enforcement mechanism. Instead of having the state prosecute violators, it “exclusively” empowers private citizens to bring civil suits against abortionists, punishable by a minimum of $10,000 in statutory relief per abortion plus whatever additional injunctive relief is deemed “sufficient to prevent the defendant from violating this chapter or engaging in acts that aid or abet violations of this chapter.”
Texas Right to Life (TRTL) has set up a website where concerned Texans can anonymously report abortionists who commit abortions after finding a heartbeat or without testing for one.
Abortion organizations including Planned Parenthood Center for Choice and Whole Woman’s Health Alliance filed emergency motions with the 5th Circuit Court of Appeals seeking a stay on enforcing the law. But last Friday night, the court canceled a hearing on the matter that had been planned for Monday, then denied the motions on Sunday afternoon.
The 5th Circuit’s denial cleared the way for the law to take effect Wednesday, September 1, which it did when the Supreme Court declined to intervene Tuesday evening in response to an emergency petition from the pro-abortion Center for Reproductive Rights (CRR).
Now, the Court has formally weighed in, ruling 5-4 that while CRR and its allies “have raised serious questions regarding the constitutionality of the Texas law at issue,” they also presented “complex and novel antecedent procedural questions on which they have not carried their burden.”
“For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” wrote the majority, which consisted of Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. “And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention…The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.”
“Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law,” the Court continued. “Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law. In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application.
The justices closed by stressing that they were not hinting at any long-term resolution to “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.”
Chief Justice John Roberts, an appointee of Republican President George W. Bush, joined the Democrat-appointed Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in dissent, writing that the “statutory scheme” of the Texas Heartbeat Act “is not only unusual, but unprecedented,” and that he “would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws” by delegating enforcement to private citizens.
Breyer, meanwhile, reiterated his view that a “woman has a federal constitutional right to obtain an abortion during” the “first stage of pregnancy.” Sotomayor attacked her colleagues for supposedly “bury[ing] their heads in the sand” when “[p]resented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.” And Kagan blasted the law as “patently unconstitutional’ for empowering “private parties to carry out unconstitutional restrictions on the State’s behalf.”
While the Court’s final judgment on the Texas law remains to be seen, the justices are already expected to offer a more comprehensive treatment of abortion in their upcoming hearing of a Mississippi law banning abortions from being committed past 15 weeks for any reason other than physical medical emergencies or severe fetal abnormalities.
Various pro-life public officials, scholars, and activists have filed amicus briefs urging the Supreme Court to not merely uphold the law but take the opportunity to directly overturn both 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey (which opened the door to some abortion regulations while reaffirming the “right” to abortion itself).
Many pro-lifers see the case as the greatest test yet of the current justices, a majority of whom were appointed by Republican presidents yet have still disappointed pro-lifers and conservatives on various occasions.
Only Justice Clarence Thomas is explicitly on the record as anti-Roe, and only he and Justice Samuel Alito have established consistently conservative records over a significant period of time. Many have placed a great deal of hope with former President Donald Trump’s appointees, though conservatives have also been alarmed by Justice Neil Gorsuch voting to redefine “sex” in federal civil rights law last year, and Justices Brett Kavanaugh and Amy Coney Barrett voting not to hear several cases of concern to religious, conservative, and/or pro-life Americans.
While Wednesday’s decision took pains to clarify that it wasn’t a ruling on the merits of the Texas Heartbeat Act, many pro-lifers have taken the majority’s willingness to let the law stand even temporarily as an encouraging sign.
In the meantime, the new law has already begun to save lives. NBC News reported Tuesday evening that “all 11 of the Planned Parenthood health centers in Texas” have “stopped scheduling visits after Sept. 1 for abortions past six weeks of pregnancy,” and that Whole Woman’s Health claims that its “four clinics in Texas will also comply with the law and prohibit abortion at seven weeks or less depending on the ultrasound results and if cardiac activity is detected.”