Like every other woman interested in politics at Brandeis University, I have been following the developments surrounding Texas’ SB 8, or the “Texas Heartbeat Act” that was put into place on Sep. 1. This act procedurally bans abortions after the sixth week of gestation, when a fetal heartbeat is typically picked up, hence its name. This legislation is revolutionary in the worst imaginable way for women’s rights, and civil rights in general, in the United States. Women only make up roughly 27 percent of the Texas state legislature, meaning 73 percent of the voting power about women’s health and women’s rights in the state comes from men. 73 percent of the votes cast revoking women’s right to abortion in Texas were cast by men who know little to nothing about the science of gestation, women’s menstrual cycles and how early on pregnancies can be detected. Fueled by religious fervor and obvious hate for women’s autonomy, Texas men voted SB 8 into action, creating important new questions for the legal and political landscape in America.
The revolutionary nature of this legislation is built into how it is policed. Within the text of SB 8, lawmakers noted that “any person other than an officer or employee of a state or local governmental entity in this state may bring a civil action” against any person who violates the new statute. Meaning, individual private citizens have been delegated to enforce the act. Deputizing citizens to take up civil action lawsuits against people who seek abortions and who perform them after the six week mark makes governmental intervention nearly impossible as there is no one direct legal enforcer. The United States government cannot take up individuals’ charges against each person in the state of Texas that exposes women seeking abortion, and there is no law set in place that helps the government work around such problematic state legislation. Along with the simple fact that the law was made impossible to challenge before they are enforced, it also was written as to never have to occur.
SB 8 presents citizens with $10,000 rewards for each individual or clinic they bring civil action suits against, and requires the individuals and clinics to pay for damages as well as their own legal assistance for each suit. So, for example, if 10 people standing outside of a Planned Parenthood saw someone enter for an abortion, each of the 10 witnesses could try both the person who seeked the abortion and the clinic for providing them. The act is essentially made to threaten abortion providers and people seeking abortions, and frighten them into stopping their practices entirely through the civil action power of individual citizens and a slurry of potential expensive suits.
Women in America are appalled at how this act passed and the fact that nothing has yet to be done, but this is because there is nothing that already exists that could really be done about this. Some scholars suggest older legal tradition and intervention to counteract the new law. But short of Supreme Court intervention, I doubt there is any law or provision already written that could stand up against such a well-thought-out redaction of women’s rights, and it is evident that the Supreme Court does not plan to do anything about SB 8. On Sep. 1, the USSC decided via shadow docket (which I discussed in a Hoot article last semester) that their intervention was not necessary at that time because “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.” Since the Supreme Court ruled out the likelihood of their assistance pre-enforcement, it is also likely that they will not intervene as the statute grips Texas. Since it is written specifically not to be enforced, the Supreme Court would see no issue with it later on despite the fact that it is frightening women and abortion providers to the point where their rights are no longer viable. No pre-enforcement challenges made by the Supreme Court and no enforcement in general means there is little to no likelihood of the Supreme Court paying any more attention to the situation unless it is to cut rights to abortion further.
It is obvious that the current Supreme Court makeup has bias against Roe v. Wade, but due to the case’s popularity among American citizens they fear that directly turning over Roe would cause a problematic stir. It seems as though the court will be ignoring these issues of anti-abortion state legislation, and cutting rights to abortion slowly via shadow dockets and cases that end up on their official docket. One abortion case to keep an eye on that is scheduled to be argued on Dec. 1, 2021 is the case of Dobbs v. Jackson Women’s Health Organization. The case stems from a Mississippi law which bans most abortions after the 15 week period, which is noteably pre-fetal viability. After the law was shot down in the fifth U.S. Circuit Court, the case was sent to the Supreme Court and accepted for argument. With this case looming over the abortion rights scene, Texas’ abortion law is either going to be solidified via court opinion, or not. In my opinion, the likelihood of the court disagreeing with the Mississippi law is questionable. There is a 6-3 majority in the court at the moment, with their stance on abortion very clear.
I worry that nothing positive will be done for abortion rights within the Supreme Court regardless of the precedent of Roe v. Wade. The court is a political institution despite the myth that it is separate from politics and individual ideas of morality, religion, right and wrong. Bias will slip through the widening cracks in the Supreme Court’s assumed neutrality, and no matter how clear the precedent, abortion rights will continue to be slashed. So, what is to come next? We aren’t really sure.
Other states are going to be following suit with legislation that limits women’s right to abortion. New Hampshire, a swing state and my home state recently passed a 24-week abortion ban that was slipped into the new state budget bill this past summer. Other states in the south will follow suit with similar styles of abortion bans and legislation written to evade intervention. Some legal scholars worry about how this type of legislation could be warped into other bans, and could possibly affect other constitutionally protected rights. Justices who dissented on the shadow docket decision also noted how they were worried about the potential consequences of not intervening not only in the case of Texas, but for the future. Nothing is entirely certain but the situation continues to unfold to reveal more concerning questions about what the Supreme Court may do, if anything. President Biden released a statement on Sep. 2 that called the ruling on SB 8 “an unprecedented assault on a woman’s constitutional rights,” and remarked that the federal government will be looking into what can be done to counteract the new law. But it is unclear if anything can be done by Biden and the executive branch.
This is a case to be followed closely if you are at all invested in your civil rights and liberties. Whether you are a woman or not you should be wary of what is to come from legal loopholes brought up by SB 8 and the inadequacy of the Supreme Court’s handling of the legislation. We will see what is to come with the Dobbs case, but I am not optimistic. I have learned with American politics and law, it’s best not to be.
* Author Note: Thank you to Professor Lenowitz (aka my favorite politics professor) for sending me some super helpful information that helped me write this piece, and for keeping students updated on the weird modern legal situation. Additionally, while this article focuses on women-specific terms, it is important to note that not only women get abortions but trans men, non binary people, etc. The right to abortion is important for everyone.