On September 1, Texas passed its Heartbeat Act, which essentially bans abortion, even in cases of rape, sexual abuse, and incest, once a fetal heartbeat can be detected. It illegalizes abortions at about six weeks after the patient’s last menstrual period, which is before most people even realize they are pregnant, and encourages “deputized” civilians to sue anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion…or intends to engage in the conduct described.” As the law is enforced by private citizens rather than the Texan government, it seeks to circumvent Roe v. Wade, which ruled that the right of a pregnant person to have an abortion is constitutionally protected, as well as to deny abortion providers and related parties the opportunity to challenge the constitutionality of the Act.
At a press conference held on September 7, U.S. Attorney General Merrick Garland announced that the Department of Justice would be suing the state of Texas over the Act’s violation of the Supremacy Clause, the 14th Amendment’s Equal Protection Clause, and the aforementioned Roe v. Wade ruling. “The act is clearly unconstitutional under long-standing Supreme Court precedent,” Garland stated. “Those precedents hold, in the words of Planned Parenthood v. Casey, that ‘regardless of whether exceptions are made for particular circumstances, a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’” On October 6, in response to an emergency request by the DOJ, U.S. District Court Judge Robert Pitman temporarily blocked the enforcement of the Act, now also called Senate Bill 8. Two days later, the 5th U.S. Circuit Court of Appeals reinstated the law, ruling that it will remain in effect while the lawsuit progresses.
Following the DOJ’s request for its intervention, the U.S. Supreme Court agreed to review the law on November 1, but would not block it in the meantime. Rather than directly examine the constitutionality of SB8, it would consider whether the state’s roundabout enforcement method could protect it from court review and whether the federal government could sue and “obtain injunctive or declaratory relief” against the state and relevant officials. In her dissent, Justice Sonia Sotomayor wrote, “There are women in Texas who became pregnant on or around the day that [SB8] took effect. As I write these words, some of those women do not know they are pregnant. When they find out, should they wish to exercise their constitutional right to seek abortion care, they will be unable to do so anywhere in their home State. Those with sufficient resources may spend thousands of dollars and multiple days anxiously seeking care from out-of-state providers [who] are so overwhelmed with Texas patients that they cannot adequately serve their own communities. Those without the ability to make this journey, whether due to lack of money or childcare or employment flexibility or the myriad other constraints that shape people’s day-to-day lives, may be forced to carry to term against their wishes or resort to dangerous methods of self-help.”
As of November 6, 2021, SB8 remains under review.(For more information on the law’s provisions, please refer to the Texas Tribune’s article “We annotated Texas’ near-total abortion ban. Here’s what the law says about enforcement.”)