On September 1, a new heartbeat law (SR 8) went into effect in Texas. If you’ve read our information on heartbeat bills before, you may have assumed that Texas passed a similar law and it was immediately enjoined like all the others. No, the Texas law went into effect. Right now, in the state of Texas, abortion facilities are declining to schedule abortion appointments past six weeks LMP.
In Texas, the vast majority of abortions are now illegal, in spite of Roe and Casey. In fact, in response to an emergency appeal, the Supreme Court declined, in a 5-4 “shadow docket” decision, to prevent the law from going into effect. That decision makes no judgment on the constitutionality of the law; it’s certainly “unconstitutional” in that it violates the precedents of the Court’s prior abortion cases, whether or not Roe and Casey should themselves be considered unconstitutional.
So, how did this happen?
Estimated reading time: 5 minutes
Texas’ Private Enforcement Mechanism
In many ways, Texas’ heartbeat law pretty closely resembles those of the other states. It prohibits abortions after a heartbeat is detectable, requires the abortion practitioner to check for a heartbeat before performing an abortion except in emergency situations, provides an exception for medical necessity, and explicitly exempts women seeking or procuring abortions from legal liability.
What makes the Texas law unique is its enforcement mechanism. The state, and any employees of the state, are prohibited from enforcing the law. Instead, the law allows private individuals to bring civil lawsuits against individuals who aided, abetted, or performed abortions—that is to say, abortion practitioners, escorts, funders, etc. Those who are successfully sued are required to pay a $10,000 (or more) fine for each abortion performed to the citizen who brought the suit.
Because the state isn’t enforcing the law, pro-choice advocates can’t just sue the state to block enforcement of the law on the grounds that the law is unconstitutional. The point is designing a law that avoids immediately being blocked from going into effect, which this odd enforcement scheme has done.
In order to bring a lawsuit, you need to have what’s called “standing.” In the most basic terms, you have to show that you, personally, are or will be (or are extremely likely to be) harmed by another defined entity (like the state). Without standing, it doesn’t matter if a certain thing is unconstitutional—you can’t sue.
To take one famous example: Hugo Black was nominated and confirmed to the Court in 1937. Immediately, his appointment was challenged on constitutional grounds: it was likely a violation of one or more of the Emoluments Clause, the Appointments Clause, and Article I, Section Six, Clause Two of the Constitution. The case was thrown out, though, because the litigant lacked standing; according to the Court, he couldn’t demonstrate what harm could come to him specifically from the appointment.
Black’s appointment was probably unconstitutional, but the Court didn’t hear the case on its merits. In fact, the attitude of the court was that standing to sue had to come before the merits of the case. Even if no one had standing and the case at issue demonstrated clear unconstitutionality, that doesn’t mean they would take on the case.
The Texas Legislature is employing this idea to the benefit of its heartbeat law. By intentionally muddying the waters about legal standing, and possibly preventing individuals and organizations from having standing to sue on a large enough scale to obtain the customary injunction, the Legislature created at least enough of a delay for the law to go into effect for a time.
How long will it remain in effect? It’s impossible to know. Personally, I don’t see it surviving in any sort of long-term way, because the most expensive pro-choice lawyers money can buy are all searching for a way to gain standing and invalidate the law. Eventually, they will succeed (or will at least find a sympathetic judge who says they succeeded).
The Supreme Court Denies the Emergency Petition
Because they weren’t able to invalidate the law in the usual way, pro-choice litigants turned to a last-ditch hope: an emergency petition to the Supreme Court. They requested an injunction against the law because of its unconstitutionality, regardless of the enforcement mechanism.
The Court declined to issue that injunction in a 5-4 decision. The majority essentially held that the litigants failed to show that the entities they sued would enforce the law, and therefore the Court could not enjoin them in advance from enforcing a law they weren’t going to enforce. The majority specified that they were not making a decision on the merits, and rather welcomed litigation in the normal manner.
Roberts joined the liberal justices in dissenting. Curiously, Sotomayor complained that the Court delayed too long before issuing the (in her mind) wrong decision, while Kagan complained that the majority proceeded too quickly. The fact of the matter is that the emergency petition isn’t designed to be a way to circumvent normal legal processes to get an immediate, full hearing on the merits. It’s rather extraordinary to prevent a law from going into effect before making a demonstration of standing and expected harms.
Breyer alone makes the interesting point that earlier case law might tip the balance in favor of the injunction by prohibiting the state of Texas from delegating powers it doesn’t actually have. For Breyer, Texas can’t prohibit abortions after six weeks due to Casey, so it can’t give its citizens the right to enforce a law they didn’t have the authority to make.
Where Does that Leave Us?
Right now, abortions in Texas have been largely curtailed and abortion facilities and practitioners are suffering financial losses. Those are all good things. We shouldn’t necessarily expect that to continue for long, but they’re goods while they last. There is reason to be concerned about backlash, as pro-choice people have certainly been stirred up by the law. It remains to be seen if the backlash will progress beyond angry tweets and Handmaid’s Tale memes to concrete political action; at a minimum, it’s probably going to be harder to have a calm conversation about abortion at the moment.
The Court’s decision doesn’t necessarily tell us much about the fate of the law, or of the upcoming Dobbs decision. 5-4 is too close for comfort when literally millions of lives are at stake. Pro-life people don’t have time for a victory lap, nor is it appropriate. 48 other states (excluding Missouri) are still performing abortions today, and heartbeat bills cover six weeks too few.
So, we can celebrate that lives are saved, but we need to learn from the backlash from and successes of SB 8 in order to continue laying the groundwork for broader, culture-changing work.
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