Opponents of Texas’s new Heartbeat Act have unleashed overheated rhetoric impugning the motives and methods of the state’s legislators, criticizing the Supreme Court justices who last week declined to enjoin the law, and lamenting the impending end of abortion rights in America. House Speaker Nancy Pelosi (D-Calif.) called for federal codification of Roe v. Wade, and President Biden promised a “whole of government” response. Given the intensity of this reaction, it is worth reflecting on the Heartbeat Act, why is it designed as it is, and how we arrived in such a strange legal cul-de-sac.
The short answer? This is the predictable consequence of decades of confusion and upheaval wrought by the Supreme Court’s constitutionally unwarranted decision to make itself the sole arbiter of abortion law in the United States, first in Roe and again in Planned Parenthood v. Casey. And though it may seem counterintuitive, the only way to return to anything resembling normalcy is for the court to overrule Roe and Casey and allow the American people to govern themselves on this perennially vexed issue through the deliberative processes of the political branches.
The right to abortion has never been rooted in the text, history or tradition of the Constitution. Indeed, the putative source of authority — the 14th Amendment — was ratified at a time when abortion was criminalized in nearly every state. For almost a century after its enactment, no one seriously thought it precluded states from extending legal protection to unborn children.
Since its 1973 invention of a right to abortion in Roe v. Wade, the Supreme Court’s jurisprudence has been a tortured and shifting cluster of normative rationales (privacy, then liberty, then perhaps equality), rules (e.g., the trimester framework, pre- vs. post-viability “undue burden” standard, or open-ended “burdens vs. benefits” analysis), and standards of judicial review (depending on whether the right is “fundamental” or a mere protected “liberty interest”).
Overall, it seems clear enough that the abortion law created by the court is very permissive, essentially forbidding pre-viability bans, and authorizing abortions thereafter so long as the provider can cite any aspect of the woman’s well-being, very broadly understood, that warrants the abortion. Accordingly, the Supreme Court has never permitted a ban on abortion as such at any gestational stage. It has allowed some ancillary restrictions, such as 24-hour waiting periods, informed-consent laws, parental involvement requirements (with judicial bypass), and bans on particularly controversial methods of abortion. The United States is one of only a handful of countries in the world that allow abortion after 20 weeks gestation.
That said, there is profound confusion even among sitting justices and lower federal court judges about what, exactly, the court-made law of abortion requires. This indeterminacy has put state legislatures in a bind. Abortion rights advocates challenge every state regulation of abortion and routinely obtain injunctions against such laws by federal trial judges whose discretion is essentially unfettered by the vacuity of the law. Even laws nearly identical to those previously affirmed as constitutional have been recently nullified.
Texas responded to this futile cycle by adopting a strategy developed by progressives to root out fraud against the government and to protect the environment — namely, through “citizen suits.” The law authorizes only private citizens to bring civil suit in Texas state court against those who perform, aid and abet abortions after a fetal heartbeat is detected (as early as six weeks gestation). Women seeking abortions are immune from suit, and there is an exception for medical emergencies.
The Texas strategy was ingenious in that it evaded the usual pre-enforcement injunction by a federal court, which only has the constitutional power to act when the parties before them are involved in a real dispute. Because neither the state officials nor the private citizen sued in the case were involved in the enforcement of the law, the Supreme Court lacked the power to intervene.
Should any citizen initiate a suit, the defendant abortion provider will almost certainly raise the defense that the law constitutes an “undue burden” to its patients — an affirmative defense explicitly created by the statute — and may well prevail, so long as the Supreme Court has not overruled Roe and Casey. Thus, claims of the demise of the right to abortion in the United States have been somewhat exaggerated. In fact, a Texas state court just issued a temporary restraining order against more than 100 potential claimants (some unnamed), before they even filed suit.
So, to return to the original question, why are we now reduced to having a fevered meta-argument about procedural technicalities regarding the jurisdiction of federal courts? In short, it is because Texas was fed up with the interminable cycle of crafting laws to protect the unborn, followed inexorably by injunctions and years of litigation before judges seeking to apply indeterminate standards stemming from a constitutionally unwarranted power grab by the Supreme Court.
There is a road back to normalcy. The Supreme Court can put us on it by dismantling its ill-founded abortion law apparatus and freeing the American people to reason together, just like our friends in numerous other countries including England, France, and Germany have been free to do, and enact laws that protect and care properly for women, children (born and unborn) and families in need.