Limiting access to abortion, or eliminating the federal right to it altogether, is a major part of the US political landscape. Since 1973, the year of the landmark decision on Roe v Wade, anti-abortion activists and politicians have been pushing to restrict an individual’s right to choose. Roe v Wade determined that pregnant people had the right to an abortion, with limited government restrictions. All first trimester abortions were legal, but state governments could limit second trimester abortions and prohibit third trimester abortions completely. Almost twenty years later, in Planned Parenthood v Casey, the court shifted away from using trimester demarcations and instead said that governments could limit abortions based on fetal viability. While fetal viability is not a set moment in a pregnancy, most consider babies to be able to survive outside of their mother’s womb around 24-28 weeks of pregnancy.
As science and technology have progressed since Casey, the anti-abortion movement has used these developments to continually push abortion bans earlier and earlier in the gestation period. Ultrasounds can now detect a flutter where the heart will grow in the baby at around six weeks. Anti-abortion activits call this a “fetal hearbeat” and have used it to determine that abortions should not be allowed past this mark. However, there is no heart at that point, just the group of cells which will grow into the heart. In fact, the “heartbeat” is not audible and can only be viewed with the ultrasound.
None of these laws have previously gone into effect because the state governments have been sued and the laws struck down on constitutional grounds. None that is until Texas’ SB8.
What makes SB8 unique
SB8 is a “heartbeat bill” that bans all abortions in the state of Texas after a woman is six weeks preganant (which means six weeks since an individuals last period). However, the government itself can not enforce the law; any individual, even one who is not directly or indirectly affected by the abortion, can make claims against abortion providers or people that aid and abet someone seeking an abortion.
Although a six-week abortion ban is known to violate Roe and Casey, this legal novelty makes it difficult to challenge the constitutionality of the law. Typically government officials are sued as they are responsible for enforcing the law. But in this circumstance, the plaintiffs had to sue government officials and individuals who might enforce the law but would not necessarily enforce the law. The goal of the author’s was to avoid legal scrutiny by making it difficult to bring a suit against the law before it goes into effect.
Some abortion providers did bring suit, however, and after their initial motion was denied in a lower court, the case was appealed to the Supreme Court. The hope was to stop the law from going into effect on September 1. The Supreme Court, in a 5-4 vote, refused to block the law, effectively banning most abortions in Texas. The Supreme Court determined that the case brought to them did not adequately address the novel enforcement mechanism written in the law. Although the majority claimed they were not ruling on the constitutionality of the law, most people believe they are signaling their willingness to rule against Roe in the future.
In response to the failure of the Supreme Court to block SB8, the Department of Justice filed suit to prevent enforcement of the law. “The Act is clearly unconstitutional under long standing Supreme Court precedent,” said Attorney General Garland. “The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights.” A U.S. District judge then ruled in favor of the DOJ and blocked further enforcement of the law on October 6. The Texas Attorney General appealed the judge’s decision to the 5th Circuit court, who on October 8 granted a temporary administrative stay, once again preventing individuals from receiving abortion services in Texas if they are more than six weeks pregnant. On October 15, the court rejected the DOJ’s request to once again prevent Texas from enforcing the law. The court rejected that request and the stay, and law, remains in effect. Texas’ appeal of the injunction is expected to head to the Supreme Court at some point soon.
What is next for abortion rights in the US?
While SB8 has been ping ponging around the courts, abortion rights activists and supporters have kept there eyes on other cases around the country that threaten Roe. First on the list is the case of Dobbs v Jackson Women’s Health Organization which will be heard by the Supreme Court on December 1. This case will afford the court the opportunity to consider the constitutionality of Missiissippi’s ban on abortion after 15 weeks of pregnancy. If the justices rule in favor of Mississippi’s law, Roe could be overturned and the federal right to abortion ended completely. Twelve US states have trigger laws on the books so that the moment the case is overturned, first and second trimester abortions will be banned in their states. An additional six states have pre-Roe bans on the books which are not currently enforceable but could be if the case is overturned.
Even if the court were not to overturn Roe in this case, there are laws coming online across the country which threaten abortion rights and guarantee more court cases in the future. Here are just a few:
- Arkansas has a ban on abortions except medical emergencies (currently blocked enforcement by federal judge)
- Oklahoma has a ban on abortion that will come into effect in November
- Louisiana has a ban similar to Mississippi
- South Dakota & Arizona have ban’s on abortion due to genetic disorder diagnosis
- Montana has ban of abortion’s after 20 weeks
- New Hampshire has ban of abortion after 24 weeks with no exception
And with the success of SB8, many states are currently changing or writing laws that mirror the enforcement mechanism seen in Texas.
Without a shadow of a doubt, abortion rights in America could look dramatically different in 2022. And while politicians and activists continue to fight, there is little that can be done about the actions of the Supreme Court.