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Supreme Court and Abortion – Big Case


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.

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1 month ago

Will somebody settle this? Tired of hearing about it. It has been going on too long.

Deborah Gabelton
1 month ago

Once we have fully legislated this matter in terms of women’s part in the birth cycle, I hope we can get around to the men as well.

I am tired of onanism being permitted. Ejaculating (or “ejaculation”) is a sin against God unless it is done into a woman’s fertile vagina inside of wedlock. I hope none of the Christian men here has ever ejaculated into a sock or their hand or a wad of tissues. If you have, yours is the fate of Onan.

1 month ago

Can the Supreme Court handle it?

1 month ago

I think we give too much credit to a human being…its disheartening to know that God has been taken out of decisions…

Rhonda M Holub
1 month ago

You know what. I say give the Left what they want on abortion. Obviously for the most part, the right wants life. The left want death (actions speak louder than words folks), they have a right to worship at any altar, just like the rest of us. So give it to them. The right is not the lives lost! Sounds like natural apartheid to me! The kids that make it through, won’t know what gender or if they are even a gender anyway. It’s a social experiment doomed for destruction and extinction. We focus on getting rid of the Frankenstein science labs they have created and the right hunkers down and watches them self-destruct!

Marc Ziegler
1 month ago

I have one question to ask all pro-abortionist, when it is possible and one day it will happen, to begin conception in a test tube and allow a fetus to start life in an incubator, when would it be appropriate to abort the baby?? We are now removing the mother’s body from the question to kill and now only have a human life to terminate. I would call that infanticide or murder if it was done at any time. When you use abortion as contraception and that is what is happing here, that is wrong and immoral. Wake up America and do the right thing,…MZ

1 month ago

If you take the time to actually READ the Constitution you will find that the Supremes never had the authority to make Roe v Wade law…nor did they have the authority for the same sex marriage or the civil rights of the perverts…the Constitution is very straight forward….anything not awarded to the federal government in the Consititution goes back to the individual states….the individual states should have been deciding on this an God in School and everything else that the Supremes have decided that they can make rule of law on.

1 month ago

Nobody will argue that the fetus in utero is not alive; the question is and has always been, does that living fetus represent a human life? That which makes the fetus become a human life is BREATH, not heartbeat. With BREATH there is ensoulment, and without breath, there is no ensoulment. Therefore late term abortion of a pregnancy should be avoided. Once there is breath, there is a baby, a person, a living soul. See Genesis 1:30 and 2:7. Also see Exodus 21:22 – 25, the only place in the bible in which there is any reference to an aborted pregnancy. There you will see that only the potential father has any recognizable interest.

1 month ago
Reply to  Kitty

The real question is why the hell isn’t PP giving out birth control and why aren’t these lazy women taking some responsibility for their actions. You do not need an abortion if you get on birth control. Babies lives matter as much as anyone else’s life. A fetus is a human being….and these sick people pull their little arms and legs off their bodies without any pain killer… would they like the same done to them…..and yes, the babies feel all of the pain.

1 month ago
Reply to  Kitty

Kitty, you are selectively splitting hairs. My daughter was born at 23 weeks. At the time she was the youngest preppie in my state. 38 years later, she is now the mother of 2.Your logic says that if you kill someone before they can breath air then it’s okay to kill them…Jeremiah 1:5 clearly states; “Before I formed you in the womb I knew you,”. It seems pretty clear that God gives life, NOT polluted air.

1 month ago
Reply to  Kitty

The minute the egg and sperm connect and there is a electrical spark, there is life from that point on. Abortion is murder.

1 month ago

Why is it that the DemocRat party Commie libtards continue to wipe away law/legal findings that in effect contributed to a healthy, growing, successful, National governance structure that has kept American great and strong since its creation as a Democratic Constitutional Governance. Is it because a large wealthy and influential members of our society want to rule, not govern the Nation according to Democracy supported by a Constitution outlining its precepts and laws?.

Robin Walter Boyd
1 month ago

Until a precise moment of time that an unborn child is determined to be alive by law, this issue will continue ad nauseum. Biological science, to my understanding, determines that any life form that has a heart beat is a live version of that life form. But hey; that’s just me thinking.

As long as there is no definite determination or law to prevent it, abortion should be legal as elective surgery when there is no criminal or medical issue causing the need/desire for an abortion. As free American citizens, we should have the right to abortions that are not considered murder of life. As such, anyone choosing elective surgery should be 100% responsible for the financial costs of such surgery. No tax dollars should ever be used to directly or indirectly fund abortions. Likewise, insurance policies should treat abortion as any other elective surgery.

1 month ago

Robin, are your Rights given to you by men or by God?The Bible states, “Before I formed you I knew you, before you were born I set you apart.”Our Rights and Freedoms are given by God, not by men.

1 month ago

I have to ask you, when a pregnant woman is murdered and the baby dies also, why is it called a double homicide? But when a Mother decides to abort her baby, it is not considered murder? I agree that tax dollars should not be used to help fund abortions and I also agree that insurance should not pay for them. As far as I’m concerned, abortion is always wrong. God is the only one who has the authority to give and take life

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