Tipsheet

U.S. Supreme Court Will Fast-Track Cases on Texas Abortion Law, Leaves Law Remaining in Effect

Rebecca Downs
Rebecca Downs  |  October 22, 2021 4:00 PM

In the almost two months since it's been in effect, the Texas abortion law that bans most abortions once a fetal heartbeat is detected, at around six weeks, has gone through a series of legal challenges. On Friday, the U.S. Supreme Court announced that it will fast-track two cases regarding the Texas Heartbeat Act, with oral arguments scheduled for November 1. 

A request made from the Department of Justice (DOJ) to stay the law was rejected, meaning the law is still in effect. The Supreme Court allowed the law to go into effect on September 1, as the lawmakers intended for it to do. Shortly thereafter, the Court released an unsigned 5-4 opinion about the decision, emphasizing it was a procedural matter, thus allowing for these lawsuits to come into play. 

The Court will hear a suit brought by Texas abortion providers and consider the enforcement mechanism behind the law, which empowers private individuals to bring suit. 

In his op-ed for The Wall Street Journal last month, Texas State Sen. Bryan Hughes, who authored the legislation, provided context for this part of the law, noting in his headline that "The Texas Abortion Law Is Unconventional Because It Had to Be." He went on to argue that government entities cannot be relied upon to enforce the law. 

As he explained: 

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Unlike other such laws passed in other parts of the country, the Heartbeat Act does not empower any governmental authority to mete out punishment for the crime. Instead it decrees that the doctor may be sued for breaking the law.

The mother cannot be sued, and we have bolstered programs to support expectant mothers. Last year the state’s Alternatives to Abortion program provided support to more than 100,000 pregnant women and adoptive parents through counseling, classes, car seats, diapers and other necessities. This year we added more than $20 million to the program, bringing total funding to over $100 million.

The law departs from conventional enforcement channels, obviously. Most 19th- and 20th-century abortion laws prohibited or regulated the practice in the traditional way. But that is much harder to do thanks to the Supreme Court’s Roe v. Wade decision of 1973—a ruling acknowledged even by liberal scholars to be a travesty of constitutional interpretation.

One of the numerous unfortunate consequences of Roe is that many people mistakenly believe any regulation on abortion must be illegitimate. This is not so. The Supreme Court does not have the power to declare subjects off limits to democratically elected legislatures.

Yet prosecutors from across the country—including district attorneys from Dallas, Bexar, Nueces and Fort Bend counties in Texas—have announced their refusal to enforce laws regulating abortion, even before they become law and before they’re litigated. Even if Roe is overturned, they say, they won’t enforce democratically passed abortion laws. If officials sworn to enforce state laws pre-emptively decide they won’t do it, even when the laws are passed and ratified and have not been challenged in the courts, state legislators are obliged to get creative.

Many crimes have a civil analog. Someone who commits a criminal assault, for instance, may be sued in civil court for assault and battery (recall the civil O.J. Simpson trial). Someone who steals property from another may be pursued for the civil tort of conversion. In almost every case, the person wronged, and therefore the person who brings the claim, is the plaintiff.

In the case of abortion, the wronged party has been extinguished. If we can’t depend on criminal enforcement, even if Roe is overturned, and the party who directly suffered harm cannot bring a claim, what’s left? Someone else must enforce the law.

In contexts other than abortion, citizens often sue to enforce laws that are otherwise difficult for the government to enforce through traditional channels. “Qui tam” actions, in which an individual sues on behalf of himself and the people, were enacted in the U.S. as early as the first Congress. Texas law, for example, allows individuals to sue on behalf of the state to recover money taken by Medicaid fraud.

Another matter the Court is considering is whether or not the federal government has the standing to sue the state of Texas over the law to prevent it from being enforced. The state's attorney general, Ken Paxton, has argued it does not. 

The Court is also scheduled to hear oral arguments on December 1 for Dobbs v. Jackson. That case will consider pre-viability abortion bans, specifically regarding Mississippi's Gestational Age Act, which bans abortions past 15-weeks gestation. 

In the midst of these upcoming legal challenges, and as abortion becomes more of a talked about topic, pro-life group Live Action has launched the 2363 project to shine a light on abortion, specifically the number of children who lose their lives to abortion each day in the United States. 

"The Texas Heartbeat law has saved thousands of lives in the weeks it has been in effect, serving as the most successful pro-life law since the constitutional fiction of Roe v. Wade was imposed upon our nation almost fifty years ago. The Supreme Court will allow the law to stay in effect until a new hearing on November 1. Each of the precious days between now and then is a victory for life that will save the lives of innocent preborn boys and girls. Every single day in our country, 2,363 children are lost to violence of abortion. We must work to save every child, and take the death toll of 2363 to 0," Live Action's president, Lila Rose, told Townhall.