Critics say the ‘heartbeat law’ will end abortion in the state

Kevin Daley • September 1, 2021 10:20 am

A Texas law that bans abortions once a fetal heartbeat is detected took effect Wednesday morning, after the Supreme Court declined to act on an emergency appeal from providers hoping to stop its implementation.

The law, called the Texas Heartbeat Act or S.B. 8, prohibits abortions as early as six weeks. Pro-choice forces fighting the new law waited on word from the Court, but a midnight deadline came and went without any order. The justices could still act on the appeal at any time.

While its long-term prospects are uncertain, successful implementation of a heartbeat law in the nation’s second most populous state is a potentially historic victory for the pro-life movement. Abortion providers and their allies interpreted the Court’s inaction ominously, with an eye toward a direct attack on Roe v. Wade the justices will hear later this year. Even if the Court ultimately sides with the providers, they were alarmed the justices would countenance even temporary implementation of a near total ban on abortions.

In an emergency application filed with the justices on Monday, Texas abortion providers warned that abortion access in the state could practically end absent judicial intervention. They asked the Supreme Court to block the law outright or allow them to make their case to a lower court.

“If permitted to take effect, S.B. 8 would immediately and catastrophically reduce abortion access in Texas, barring care for at least 85% of Texas abortion patients (those who are six weeks pregnant or greater) and likely forcing many abortion clinics ultimately to close,” ACLU lawyers representing the clinics wrote in their emergency application to the High Court.

Lawyers defending S.B. 8 said the clinics had undertaken an audacious ruse, and they urged the Court not to play along. Texas Gov. Greg Abbott signed the heartbeat law on May 19 following months of debate in the legislature. It was slated to take effect on Sept. 1 from the time of its enactment. Nonetheless, the clinics did not file a legal challenge until July 13, and they did not seek a court order staying the law until Aug. 7. Those delays effectively guaranteed the dispute would be processed on an accelerated basis.

Given those tactical holdups, the state said any emergency was of the clinics’ own making, the result of a judicial game of chicken.

“Applicants’ inability to obtain a preliminary injunction is the result of their own litigation decisions, not some injustice foisted upon them,” lawyers for the state wrote in their response.

Texas lawmakers crafted the heartbeat bill to survive pre-implementation lawsuits. The law assigns enforcement to private citizens rather than government officials, enabling individuals to sue providers who perform abortions once a heartbeat is detected. Successful claimants are entitled to at least $10,000. Individuals who aid and abet illegal abortions are also liable under the statute.

Because enforcement is entrusted to private citizens—indeed, government officials are explicitly prohibited from applying it—there is no specific entity a court can preemptively bind by judicial order. Constitutional challenges, the architects believe, will be worked out on a case-by-case basis once individuals bring lawsuits against providers under S.B. 8 in Texas courts.

The clinics tried to circumvent this roundabout enforcement scheme by naming every state court judge and clerk in Texas as a defendant to stop them even hearing lawsuits under S.B. 8. They also stressed that S.B. 8 jeopardizes abortion rights from the very earliest stages of pregnancy, which has been disallowed since Roe was decided.

“S.B. 8 unquestionably contravenes this Court’s precedent and will cause clear harm beginning at midnight tonight, with abortions after six weeks banned throughout Texas—something that has never been allowed to occur in any other state of the nation in the decades since Roe. The urgency of the harm and the obvious violation of this Court’s precedents calls out for this Court’s relief,” lawyers for the clinics wrote in their emergency appeal.

About 55,000 abortions are performed in Texas each year, according to the pro-choice Guttmacher Institute. As of 2017, there were 35 facilities performing abortions in the state.

Later this year, the Supreme Court will consider the constitutionality of a Mississippi law than bans abortions after 15 weeks. Mississippi told the Court that it ought to overturn Roe in a July filing.

Tuesday’s case is No. 21A24 Whole Woman’s Health v. Texas.