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Thirteen states have enacted so-called fetal heartbeat laws banning abortions once embryonic cardiac activity can be detected. Courts have enjoined their enforcement as unconstitutional. However, on September 1, 2021, the US Supreme Court declined to block a Texas fetal heartbeat law, which virtually eliminates access to abortion services in Texas.
Texas Governor Greg Abbott signed SB8 into law on May 19, 2021, with an effective date of September 1, 2021. SB8 states, “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child,” absent a medical emergency, and requires physicians to search for cardiac activity before aborting the fetus.1 The law essentially prohibits abortion after 6 weeks of gestational age, before most women know that they are pregnant.
Texas’ fetal heartbeat law has a unique feature. It empowers private individuals to bring civil lawsuits not just against physicians but also against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion,” regardless of whether the person knew the abortion was unlawful. It includes “reimbursing the costs of an abortion through insurance.” The language is so broad that it could cover a clinician or friend who counsels a woman or even a driver who transports her to an abortion clinic. SB8 goes further, imposing liability if the person even “intends to engage in the conduct.” Any citizen may bring a civil lawsuit and, if successful, the defendants are required to pay damages of $10 000 or more for each abortion, along with costs and attorney’s fees. SB8 therefore leaves the law’s enforcement not to state officials, but to private individuals, who are given monetary rewards in the form of damages.1
Existing US Supreme Court precedent, particularly Roe v Wade and Planned Parenthood v Casey, unambiguously prohibits states from outright bans on previability abortions; states may not proscribe abortions before fetal viability. The Texas legislation sought to evade judicial review by enforcing the law exclusively through private civil actions, while prohibiting state officers from enforcement.1 The seminal Supreme Court case of Ex Parte Young2 allows a federal court to enjoin an unconstitutional law by suing a state official administering the law. By prohibiting state enforcement, Texas sought to prevent constitutional challenges, effectively insulating the state from meaningful judicial review.
The goal of the Texas law is to deter physicians from providing abortions, and that has been the effect. According to information from Planned Parenthood, approximately 85% to 90% of those who seek abortions in Texas are at least 6 weeks into pregnancy.3 Texas clinics are turning away women who are seeking care; some clinics have discontinued providing abortion services altogether. Women in Texas who are seeking pregnancy termination may need more resources to travel to another state for abortion services; those with fewer resources or lower incomes may lack the means to travel (eg, time off from work, childcare and transportation costs).4 The average travel distance has increased from 12 to 248 miles 1-way.4 Women will face additional risks should a partner who is prone to domestic violence discover her health care plan due to her prolonged time away.
Centers and clinicians in Texas that provide abortion services and abortion rights groups brought a lawsuit challenging the law’s constitutionality, naming various Texas officials and seeking an order to prevent the enforcement of the law during the pendency of the litigation. On September 1, 2021, the US Supreme Court allowed SB8 to go into effect. In an unsigned 5-4 opinion, the Court acknowledged “serious” constitutional questions, but said the law “presents complex and novel” procedural questions and thus declined to provide a stay, thus allowing the law to go into effect.5 The dissenting justices largely viewed Texas’ law as a “scheme to insulate its law from judicial review” and would have the courts “consider whether a state can avoid responsibility for its laws.”5 Justice Sotomayor, joined by Justices Kagan and Breyer, stated that the majority’s order was “stunning,” describing Texas law as “flagrantly unconstitutional,” flouting 50 years of federal precedent.5
The Future of Constitutional Protection of Abortion Services
Roe v Wade and Planned Parenthood v Casey have arguably taken on the status of “super-precedent,” with parts of society having relied heavily and repeatedly on these rulings. At her confirmation hearing in 2020, Justice Barrett refused to accord Roe this status. It would thus appear that 5 of the 9 US Supreme Court justices may share that view.
In the years since Roe, the US Supreme Court has repeatedly cut back on a woman’s right to abortion, but never to the magnitude sought by Texas in SB8. This term, the Court will hear Dobbs v Jackson Women’s Health Organization, a challenge to the constitutionality of a Mississippi law that (with limited exceptions) prohibits abortions after the 15th week of pregnancy. In that case, the Supreme Court could abandon Roe’s core ruling, namely that the state may not proscribe abortions before fetal viability. Mississippi's opening brief states: “Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.”6 While the Court might uphold Mississippi’s law without fully abandoning the constitutional protection of abortion services, it is difficult to see how it could do the same with SB8, the Texas law. If a state can constitutionally ban previable abortion at 6 weeks, there is effectively nothing left of the Court’s constitutional protection of women’s right to abortion.
The US Supreme Court may still rule on SB8, it may even find it unconstitutional, but its decision to allow the law to go into effect means clinics will close and many Texas women will be unable to access abortion, including pregnancies resulting from rape or incest.
The design of SB8—apparently modeled after a proposal by a conservative lawyer7,8—and the US Supreme Court’s action in this case reach far beyond abortion. Public officials of any political party should be concerned, both morally and legally, by the idea that states can deputize citizens as the state’s agents of enforcement and shield a law against constitutional review. If such a rule were to be adopted, there is nothing to stop states with very different political motivations from trying the same approach, for example, to outlaw handgun ownership in violation of the US Supreme Court’s Second Amendment jurisprudence and avoid review by making it private citizens, and not the state, who enforce the law through civil actions.
What happens next? Multiple legal actions are underway. On September 3, 2021, the district court of Travis County issued a temporary restraining order to block enforcement of the law against certain abortion centers and clinicians. This limited order is binding only between the named centers and clinicians and the named defendants: Texas Right to Life, John Seago, and certain John or Jane Does. The US Department of Justice has brought suit naming the state of Texas as the defendant, and on September 14, 2021, sought a temporary restraining order or a preliminary injunction against SB8. Its filing opens by intoning that Texas’ “unprecedented scheme…to shield a plainly unconstitutional law from review cannot stand.”9 It argues that even if SB8 prevents private individuals from bringing suit at this stage, “those obstacles do not impede…an action by the United States against the State of Texas Itself.”9 The federal district court agreed to hold a hearing on this motion on October 1, 2021. Whether it grants or denies the motion, its ruling will enable appellate and ultimately US Supreme Court review. It remains to be seen whether the US Supreme Court takes this opportunity to revisit its earlier decision to let SB8 stand.
Lawyers will continue to debate the intricacies of Ex Parte Young, when it is appropriate to grant a stay to stop a law from going into effect, when particular judicial or other state officers may be sued, and other procedural issues in the SB8 case. But this desiccated judicial wrangling must not distract from the reality facing physicians and other clinicians on the front line of providing legal health care, including abortion services, and for women in their care: Texan women must leave their state to obtain legal health services. Although this is a profoundly disturbing reality, the US Supreme Court has thus far allowed this to happen in this country.
Corresponding Author: I. Glenn Cohen, JD, Harvard Law School, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, Harvard University, 1525 Massachusetts Ave, Griswold Hall, Room 503, Cambridge, MA 02138 (email@example.com).
Published Online: September 23, 2021. doi:10.1001/jama.2021.17639
Conflict of Interest Disclosures: Mr Cohen reported that he serves as a bioethics consultant for Otsuka on the Abilify MyCite product, is a member of the Illumina ethics advisory, and serves as an ethics consultant for DawnLight, all outside the scope of this article. No other disclosures were reported.
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Cohen IG, Adashi EY, Gostin LO. The Supreme Court, the Texas Abortion Law (SB8), and the Beginning of the End of Roe v Wade? JAMA. 2021;326(15):1473–1474. doi:10.1001/jama.2021.17639
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