Texas Senate Bill 8, also known as the Texas Heartbeat Act, remains concerning for multiple reasons. The Act, which came into force on September 2021, effectively bans abortions in Texas around the six week period of a women’s last menstrual cycle; which is a period when the embryo’s cardiac activity may be detected in the form of an electrical pulse. The mechanism the law employs relies on allowing private citizens to sue abortion providers or any other person that “aids or abets” in an abortion, after the designated six week period. This article will attempt to set out four main ways the Act poses particular problems for abortion care in Texas, and within wider constitutional debate.
DISREGARD FOR MATERNAL HEALTH
The Act’s restrictions on abortion are particularly unique for a number of reasons. As previously mentioned,, the Act prohibits abortions around the six week stage of pregnancy, when most women are unaware that they are pregnant. The law essentially presents a categorical ban on abortions, with the exception of “medical emergencies” on the part of the mother, which the Act defines as “a life-threatening condition aggrieved by, caused by, or rising from a pregnancy”. This definition can only be satisfied if the mother faces a threat of “death, or serious risk of substantial impairment”. Therefore, unless there is a life threatening situation, the law will ignore all other circumstances by which an abortion may be necessary.,
Realistically, the reasons why women choose to undergo abortions are multi-faceted; this decision does not always match the callous portrayal presented in mainstream media. These nuanced reasons may include unfortunate medical conditions such as selective reduction in multiple gestation cases (where the mother is pregnant with multiple children and must choose which pregnancy to carry forward), or foetal reduction for severe twin-twin transfusion. The new law also offers little consideration for maternal medical conditions, where continuing with the pregnancy increases the risk of injury (which does not meet the standard of legal “medical emergency” as set out within the Act). Conditions such as cardiomyopathy, lupus, and nephrotic syndrome, for example, are common factors present within a significant percentage of pregnancies and certainly deserve to be taken into account. Evidentially, the Act is structured to focus solely on the foetus, with little regard towards the nuanced circumstances that surround gestation.
SOCIO-ECONOMIC IMPLICATIONS
What this indicates to us is that the pro-life/ pro-choice debate is much more complicated than what most mainstream narratives draw it out to be. There are real world implications that get lost within the prevailing narrative. As a matter of fact, it is the poorest of women who will suffer the most from this ban, i.e. women who have statistically had very little in terms of access to reproductive care.
Under the new provisions of the Act, women that are seeking an abortion would need to travel out of state where abortions up to 24 weeks are still legal. However, the poorest women do not have access to these means of travelling; as such, most will not be in a financially viable position to travel across state lines to access reproductive care. Women from a privileged status have always been able to get the care they require, given they have the means to do so. While, it is the law’s duty to protect those who already face substantive barriers to accessing their constitutionally protected medical rights, the Texas Heartbeat Act creates burdens that fall hardest on the backs of those from already low income, underprivileged socio-economic statuses. Whatever the dominant narrative is on abortion, the law should reflect the aid and protection of its vulnerable patrons, and not the political incentives of those in power. By not allowing for mitigating circumstances, this Act effectively denies these women its protection.
REVERSING A PRECEDENT
The Act is also a rash departure from the precedent set out in Roe v. Wade and Planned Parenthood v. Casey, where the Supreme Court confirmed the constitutional protection afforded towards personal choices, which are to be free from unwarranted legislative intrusion and oversight. Eisenstadt v. Baid affirmed this decision, and most importantly, extended its principle to the realm of abortion care. By intentionally overriding this principle, the legislature has effectively deprived women of their fundamental right to make a decision about their pregnancies before they are ready to choose. The repudiation of Roe’s limits of state power come with serious issues of inequity at the hands of unlimited state power, especially towards those who come from underdeveloped economic settings. Women from these backgrounds have made choices based on their reliance on the availability of abortion care within their state in the event that preliminary means of contraception should fail. Their ability to participate in society and make effective choices largely depends on their protected right to control the reproductive aspects of their lives. The impact of taking away that choice is catastrophic.
IMMUNITY FROM JUDICIAL REVIEW
Beyond effectively skirting reproductive care within Texas, the Act is particularly troubling because the mechanisms it employs circumvents the foundational concept of judicial review. Judicial review is guaranteed within American Jurisprudence within the landmark common-law case of Marbury v. Madison, which affirmed the Supreme Court’s authority to review executive legislation to determine its legality under the constitution. The lesser known case of Martin v. Hunter’s Lessee extends the principle set out in Marbury and expands this precedent to cover state officials and state legislature. Typically, when an agent cannot sue the state in order to block that state law from taking effect (a doctrine known as “sovereign immunity”), the constitutionality of the Act can typically be tested by way of raising a constitutional challenge to the state officers enforcing that law. The goal here is to obtain a court order preventing that officer from imposing that law. This exception of being able to challenge an Act by way of blocking the state officer is governed by Ex Party Young. The Texas Heartbeat Act remains unsettling in that it does not grant its powers of enforcement to any state official in order to enforce it. Instead, the statute relies on ordinary citizens to implement it, providing up to $10,000 in legal fees to any private agent that takes up a suit against an abortion provider or anyone who “aids and abets” in the practice.
This novel procedural strategy was intentionally created by the legislature as a deliberate attempt to evade judicial review to determine the Act’s constitutionality. This is made all the more complicated by the fact that federal law is not clear on whether a suit can be brought up against a private citizen. This may be evidenced by a December 2021 ruling in Whole Women’s Health v. Jackson, where the Supreme Court stated that abortion providers were not entitled to take a suit against state court clerks and other officials due to the novel procedures that the Act sets out. These technical entanglements effectively smother standard legal avenues by which the law can be tested, allowing a constitutionally guaranteed right to be continually frustrated when its enforcers cannot be held accountable.
Additionally, the Act does not seem to regard the doctrine of Standing, which generally works to limit how and who can bring a suit forward. Typically, only those who have suffered harm and personal injury can bring a suit before the court. The Act allows citizens to act as bounty hunters by offering financial incentives to citizens for bringing suits against abortion providers, despite no harm being done towards them personally.
THE POST-ENFORCEMENT NIGHTMARE
As previously noted, citizens that wish to challenge the law cannot do so before its enforcement due to the lack of clarity as to which party they are blocking, however, those who want to challenge the Act can still do so via post-enforcement procedures. It is worth noting that this comes with its own difficulties.
Firstly, it inhibits citizens from accessing their constitutionally guaranteed right to abortion care under Roe v. Wade, and prevents litigants from challenging the Act for either providing an abortion or aiding it. This is problematic because the intent behind this was specifically to discourage citizens from challenging the law, given the fact that they would have to risk breaking the law in the first place in order to do so, this procedural mechanism operates as an effective deterrent towards the public for challenging it in the first instance, because its mechanisms preclude the vast majority of individuals from accessing their constitutional right to testing the Act in court.
Technically, this still means that there is a way to challenge the Act in court, because the restriction lies in doing so before its enforcement, not after. However, upon referring to Griswold v. Connecticut, i.e. an abortion case in the 1960s where doctors had to violate Connecticut legislation restricting abortions in order to challenge the enforcement of the Act in the Supreme Court following their prosecution, it becomes clear that doctors and abortion care providers might have to violate the law in order to apply for constitutional redress. Although there is a mechanism available for challenging the law, the way it is set out brings in questions on how fair this mechanism is. As Justice Sotomayor observed in her dissenting speech, the procedure of the Act may only supply a “shell of what the constitution requires”, thus effectively nullifying its protections. There is no dispute as to the right to abortion prior to viability under court precedents. This Act intentionally creates a situation intended to frustrate those rights by raising vicious novel procedural issues to prevent its enjoinment. The mechanisms used to create this chilling effect are particularly dangerous when one considers that the Texas Heartbeat Act could be the first of many to use this model of procedural mechanisms to chill other constitutional rights.
A FUNDAMENTAL DENIAL OF CONSTITUTIONAL RIGHTS
In reviewing the aforementioned, it is clear that the Texas Heartbeat Act supremely challenges women’s reproductive rights; it is also evident that the devastating effects caused by the disregard for precedent set out in Roe v. Wade, compounded by the intentional novel procedures meant to frustrate litigants, were foreseeable by the architects of the Texas Heartbeat Act and were intentionally curated. The Act is a deliberate attempt to subvert constitutional processes in the interests of political ideology, with far reaching impacts. None of this is being actively disputed. Whatever one’s stance is on abortion care, the Texas Heartbeat Act concerns more than whether we agree with abortion procedures or not. It concerns the threat posed to fundamental processes that underpin the foundation of the American legal system.
Joyce is currently a 2nd-year student at the University of Manchester, pursuing an LLB. She is keenly invested in the documentation of Human Rights issues, with a specific interest in the rule of law, constitutional law, and transitional justice.