Unless you are just returning from a vacation at a faraway land with no cable, internet and phone service, it’s almost impossible to not be aware that abortion rights were in the news last week. As expected, the wall to wall coverage was highly contentious. As expected times 2, most of the coverage was sensationalized and factually inaccurate. The goal here with the Legislating and Litigating Life blog will be to provide you with a factual recount of what occurred, along with some reasonable analysis for what this all means.
On September 1st, Texas’s heartbeat bill became law, effectively banning all abortions in the state after 6 weeks. Heartbeat bills aren’t anything knew. Many have been passed over the years, only to be quickly blocked by the courts as unconstitutional before ever being able to stop an abortion from occurring. What make this law so different? Some clever lawyering and political gamesmanship.
Most laws are designed to be enforced by the state. This makes blocking such laws fairly simple by obtaining a court-ordered injunction against enforcement. The current law of the land from Roe and subsequently Casey is clear; women have a constitutional right to an abortion and any law that imposes an undue burden of a women to obtain an abortion pre-viability is unconstitutional. Unlike past heartbeat laws, the Texas law is designed to be enforced by private citizens instead of the state. Any Texas citizen has the ability to sue any person who performs and abortion, as well as anyone else to “aids or abets” in a woman obtaining an abortion for $10,000. That may include a family member who helps pay for an abortion or a friend to drives the woman to the clinic. The enforcement mechanism presented some hurdles for the pro-choice side in following their usual pre-enforcement legal challenges, which brings us to the Supreme Court.
But before we cover what the Supreme Court did, let’s first emphasize what they did NOT do. The Supreme Court did NOT overturn Roe and/or Casey. Full stop. There was a lot of misinformation out there immediately after the Supreme Court’s ruling came down late on September 2nd. Many headlines and politicians were claiming that Roe was gutted and effectively overturned. This is not remotely accurate. In fact, the 5-4 majority opinion (Roberts joined the 3 liberal Justices) unequivocally stated such:
In reaching this [decision], we stress that we do not purport to resolve definitively 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.
So, if the Court did not find Texas’s law to be constitutional, how was it allowed to become law? To put it simply, the plaintiff did not have a proper defendant to sue yet. Since the only enforcement mechanism of the law is a lawsuit brought by a private citizen, and since no private citizen brought such lawsuit prior to the law taking effect, the plaintiff had no one to sue to challenge the constitutionality of the law. The old playbook of suing the state to prevent such action from occurring wasn’t an option. This ruling was based purely on procedural grounds.
Most in the pro-life movement were in celebration mode following the Supreme Court news, and understandably so. As of right now, abortions are not occurring on unborn babies over 6 weeks of age. This is saving lives and that is a good thing. On the first day of enforcement, an abortion clinic in Fort Worth reported that 50 of their 55 scheduled abortion appointments had to be canceled. Those 50 babies have a newfound chance at life. We should pray those mothers find the strength and love to continue to choose life.
But there are some reasons to temper that excitement. First, this win will be very short-lived. Right now, those same plaintiffs are working overtime to find the proper defendant to bring a claim against. And once that occurs, this law will be overturned. I would be surprised if this law makes it to October intact.
There has also been some justifiable concern relating to the Texas heartbeat law from some on the pro-life side relating to the politics of the law as well as the overall pro-life movement. First, politically. Politics is a copycat game. The Texas republicans provided state legislatures all across the country a roadmap for how to avoid pre-enforcement challenges for all sorts of rights, many of which would upset pro-life conservatives. One example being on guns. Don’t be shocked if we see state legislation giving private citizens of a blue state the ability to sue any person who sells a firearm to another person. Sure, it would eventually be ruled unconstitutional. But that law will initially deny constitutional rights for a period of time until challenges can procedurally occur.
Now you may say such a trade-off is worth it. While this law won’t be permanent, abortions are currently not occurring in America’s 2nd biggest state. Lives are being saved. That is wonderful news. But there is some concern about the long-term effects. The overall goal of the pro-life movement is to make abortion unthinkable. We don’t want anyone to even consider abortion as an option because they know they are carrying a unique human being and they will have help to care for that little baby. We do this through winning hearts and minds, through offering love and compassion to those in need. Weaponizing private citizens to sue family members, friends, spouses, uber/lyft drivers, etc., who assist in a woman receiving an abortion isn’t the most compassionate and loving way to win hearts and minds. Especially when it is for a very short-lived win. Think of this possible scenario: a jaded ex-boyfriend hears that his ex-girlfriend is no longer pregnant. He files a lawsuit against the parents who he believes paid for an abortion and the new boyfriend who he believes drove the woman to the clinic. But it turns out that woman didn’t have an abortion. She unfortunately had a miscarriage. The family members and new boyfriend still need to hire attorneys and spend the time and money it will take to defend themselves against this misinformed lawsuit. How do you think they will view a pro-life movement cheering on this law after that experience?
Just to be clear, all of this doesn’t mean outlawing abortion and overturning Roe/Casey isn’t important. It very much is. But that also does not mean every attempt at doing so is the most effective and righteous strategy. In the end, this case is just a sideshow on the legal front of abortion. It will be in the news for a bit, but will be overturned in the near future and people will move on. The main event is on the horizon. That is the Dobbs case in front of the Supreme Court this fall, challenging the constitutionality of Louisiana’s 15-week abortion ban. This case has a legitimate shot at overturning Roe/Casey. And that is truly wonderful news. More to come on Dobbs in the coming months. In the meantime, continue to pray for the safety of the unborn, the strength of the mothers, and always be there to lend a helping hand to all those expecting and new mothers in need.