A controversial abortion law has come into effect in Texas today, September 1, after the Supreme Court failed to respond to an emergency request to block it pending a review of its constitutionality. This is the strictest abortion ban yet in the US.
This is the first time a ban on abortions after six weeks – known as "heartbeat bills", as proponents say six weeks is around the time a fetus's heartbeat can first be detected (though technically, it's the flutter from cells that eventually form the heart) – has gone into effect in the United States, making it the tightest restriction on abortion since 1973's Roe v. Wade. At six weeks many people don’t know they are pregnant, being just two weeks after a missed menstrual cycle. The law also includes no exceptions for rape or incest, though there is an exemption for "medical emergencies".
The new law also allows any private citizen to bring a civil suit against anyone who assists a pregnant person seeking an abortion. This isn't limited to medical personnel, but means any private citizen, including cab drivers or friends who may take someone to an abortion clinic or clergy members offering help, could be sued.
This novel approach shifts the focus on who is enforcing the law. Given that it is up to private citizens, a pre-enforcement challenge is much more difficult to challenge in court, as government officials are not directly enforcing it and so can’t be held accountable. It may also create what critics are calling a "bounty hunter" scheme that encourages members of the public to bring costly lawsuits against anyone they believe has violated the law and receive a monetary reward.
“The Supreme Court has not responded to our emergency request to block Texas’ radical new six-week abortion ban, SB8. The law now takes effect,” the non-profit American Civil Liberties Union (ACLU), who filed the emergency petition to halt the law, wrote in a Twitter thread.
Abortion clinics in the state worked to the very last minute to provide safe abortions before the law came into being. Whole Woman’s Health reported that they had waiting rooms filled with patients during that time, while receiving intimidation from anti-abortion protests outside.
Abortion in the United States was defined at a federal level by the Supreme Court on January 22, 1973. With a 7-2 decision in the Roe v. Wade case, the court affirmed that the legality of a woman’s right to choose whether to proceed with a pregnancy fell within the Right to Privacy protected by the Fourteenth Amendment.
The relevant part of the amendment is in section 1 and is known as the Due Process Clause: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law”. This protects citizens from state laws that violate the individual rights listed in the Bill of Rights as well as those not listed in the constitution.
The ruling remains controversial despite being supported by the majority of US citizens. There have been concerns that if an attempt to repeal Roe vs Wade reached the Supreme Court, the current conservative majority of 6-3 could allow it to pass.
The Supreme Court has already agreed to consider a Mississippi law that bans abortions at 15 weeks, which passed in 2018 but has been blocked from going into effect by two federal courts, in its upcoming term starting October 2021.