What does the new Texas law restricting abortion after a heartbeat – and the Supreme Court’s modest reaction to the law – mean? A lot, and a little. Tectonic plates may be shifting.
In short, states appear to have the right to restrict abortion after roughly six weeks, but only with private enforcement; and the Supreme Court is testing public reaction to possible reversal of Roe v. Wade, which “found” a constitutional right to abortion in a seemingly silent text.
On facts, Texas passed a law aiming to protect a child in the womb once a heartbeat is detected. Interestingly, since Roe, the Supreme Court has struggled with the progress of science. In some ways, the Texas law is not unpredicted. It represents a rendezvous of science and morality.
In a case called City of Akron, in 1983 – ten years after Roe – Supreme Court Justice Sandra Day O’Connor spoke poignantly of the rendezvous. Appointed by Ronald Reagan and first woman on the Court, she noted: “There is simply no justification in Constitutional theory for having a different standard or test for the different trimesters,” since “the interest of the state in protecting the unborn is essentially the same at all stages ….”
Candidly, she punctured Justice Blackmun’s Roe reasoning that an abortion could be justified based on “viability” outside the womb. That idea was hard to defend, as it put the “right” inferred “on a collision course with itself.” Science would push viability and detection of life toward conception. See, e.g., Is Roe v. Wade on a Collision Course in the Supreme Court?; Roe vs. Wade: 25 years later. A decision greatly undermined; How the Supreme Court Justice Sandra Day O’Connor Helped Preserve Abortion Rights.
While O’Connor did not predict the Supreme Court’s reaction to this Texas law, limiting abortion based on detectable heartbeat, she rather did. Until recently, a child’s heartbeat in utero was heard at 12 weeks by “fetal doppler.” Now, new ultrasound puts detection at six weeks.
A developing baby’s heartbeat is 160-180 beats per minute at six weeks, slowing through pregnancy toward 110 beats per minute. But the point: It is detectable earlier. See, e.g., When can I hear my baby’s heartbeat?.
Just as viability is “on a collision course” with science, so is the detection of the child’s physical presence and wellbeing. The Supreme Court let stand a law that protects the detectable child at six weeks, in effect validating O’Connor’s assessment 38 years ago.
But the Supreme Court’s 5-4 decision did something else. As a technical matter, although declining to rule on the law’s constitutionality, it let stand enforcement by the private sector. Relieving the state of that burden, the law can only now be challenged once employed.
Many see this case as a “turning point” – a signal about where future state laws and Supreme Court review might go. The Texas law “puts the enforcement powers in the hands of private citizens, rather than state or local enforcement agencies,” giving a “large financial incentive …hefty damages and attorneys’ fees” for cases won against those aiding “abortion after the detection of a heartbeat—with no caps on recovery.” See, Supreme Court Abortion Ruling Brings New Uncertainty to Decades-Old Fight – WSJ.
Interestingly, while liberal constitutionalists – or pro-abortion scholars – argue private enforcement is a “trap door” and “clearly violates the federal Constitution,” others do not see the constitutional violation. This law – S.B. 8 – is just another privately enforced law.
Notably, although no public outlet appears to have made the point, private enforcement of state and federal laws is not new. The practice is longstanding, in use to enforce antitrust, anti-corruption, and an array of other laws.
For example, under the Clean Water Act, “any citizen” can sue a company for pollution, while under the Racketeering Influenced and Corrupt Organizations Act (RICO), everyday citizens (“private attorneys general”) can bring suit for damages.
At least 60 federal statutes and hundreds of state laws permit private enforcement with financial incentives. Far from a “trap door,” “clever” deception, or wildly novel, this is just application or adaptation of longstanding legal practice to a new area of law. See, e.g., Private attorney general.
What bothers so many pro-abortion groups, scholars, judicial activists, and politicians – and what may lead House and Senate Democrats to try to “gild the lily” by passing a federal law legalizing abortion – is that the US Supreme Court is sending a clear signal: Abortion is not off the table. The constitutional right is open to question. States may have rights not asserted.
So, four big takeaways.
First, the late Justice Sandra Day O’Connor was right – Roe v. Wade is “on a collision course with itself” as science pushes back detection of life.
Second, the notion that Roe v. Wade will remain unchallenged by states aiming to protect the unborn – particularly with a 5-4 conservative majority – is fading. Challenges are likely to be heard, with uncertain effects.
Third, the Democrat-controlled House and Senate – with a Democrat president who called the Texas law “un-American” – may try to pass a federal statute pushing abortion rights over the next 15 months.
Finally, the same Democrat power-troika may push to “pack” the Supreme Court and prevent laws from being fairly interpreted against their partisan politics.
Bottom line: That noise you hear is the shifting of tectonic plates in state legislatures, courts, and at the Supreme Court. Beware of political aftershocks.