The Supreme Court of the United States issued late Wednesday a decision regarding the Texas "heartbeat bill", S.B.8. This bans abortions after six weeks and went into effect Tuesday night at midnight.
The Court denied a request from Texas healthcare providers to stop enforcement of the country’s most restrictive abortion law in a short, unsigned opinion.
The Supreme Court ruled that the constitutional right of abortion before fetal viability, as established in Roe v. Wade, can be overridden at most in part by a state law banning the practice. According to Texas, at least 85 percent of abortions occur after the six week mark. This is a time when most women don't know they are pregnant.
The fact that the law is not yet in force and cannot be challenged was the basis of the decision. Texas legislators designed the bill so that private citizens can bring civil suits against those who provide abortions or aid or abet the provision of abortions. This is rather than the state. These suits are incentivized with a $10,000 bounty plus legal costs to be paid to plaintiffs in successful cases.
Because it is private citizens and not state actors like lawyers that are technically stopping people accessing abortions, the law in its current form skirts Roe's ruling that the state cannot violate the right of privacy enshrined under the 14th Amendment. Roe also included a person's rights to choose to end a pregnancy. Most clinics would be forced to close their doors due to the high costs of defending potentially hundreds of cases.
SCOTUSblog points out that the majority decision in Whole Woman's Health vs. Jackson clarified that S.B.8 was not ruled constitutional. However, it does not mean that S.B.8 could not take effect. It was also reached after 72 hours of deliberation, with no oral arguments. This was because it was part of the Court’s "shadow docket", which traditionally considers time-sensitive cases outside of normal sitting times, where parties are at "imminent danger".
The Court's conservative justices Samuel Alito and Clarence Thomas and Trump appointees Neil Gorsuch and Brett Kavanaugh formed the majority. John Roberts, Chief Justice, joined Stephen Breyer and Elena Kagan, liberal justices, in the minority.
Justice Sotomayor called the decision "stunning" in her disapproving opinion. "It can't be that a State could evade federal judiciar scrutiny by outsourcing enforcement of unconstitutional law to its citizenry," she wrote. Later, she added: "The Court shouldn't be so content to ignore its constitutional obligation to protect not just the rights of women but also the sanctity and rule of law of its precedents." I dissent."
Twitter users, politicians and celebrities, as well as legal experts, shared their shock and horror at the news.
Whole Woman's Health against Jackson will be referred to the conservative 5th Circuit federal appels court for further litigation. The law will remain in Texas indefinitely, unless overturned by that court or another.
