Texas Abortion Ban: Hearing a Heartbeat

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Texas Abortion Ban: Hearing a Heartbeat
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Texas Abortion Ban: Early on Wednesday, Texas passed a new law banning abortions when a heartbeat is detected, which would include embryonic cardiac activity that appears roughly around six weeks into a pregnancy. Here’s what both sides are saying. To have stories like this and more delivered directly to your inbox, be sure to sign up for our newsletter.

Top Story: Texas Abortion Ban

On Wednesday, a new law in Texas that bars abortion after approximately six weeks of pregnancy took effect. Now, a physician in the Lone Star State can’t knowingly perform an abortion if there is a detectable fetal heartbeat. This includes embryonic cardiac activity, which appears roughly six weeks into a pregnancy, oftentimes before some women realize they are pregnant. As a trio of reporters from the Wall Street Journal note, “an abortion ban so early in a pregnancy … conflicts with current Supreme Court precedent, which forbids states from proscribing the procedure before the fetus is viable—that is, able to live outside the mother’s womb.” With that said, “the Supreme Court didn’t act on an emergency request by clinics and abortion-rights advocates to block it” although “the high court still could choose to act soon.” The unusual enforcement of the scheme is what makes the Texas law so different, Mark Sherman writes for the Associated Press. “Rather than have officials responsible for enforcing the law, private citizens are authorized to sue abortion providers and anyone involved in facilitating abortions. Among other situations, that would include anyone who drives a woman to a clinic to get an abortion. Under the law, anyone who successfully sues another person would be entitled to at least $10,000.” Here’s what both sides are saying:

On The Right

Most of the coverage on the right was exactly that: just news coverage. However, in the first argument below, one commentator outlines why the Supreme Court is right to deny the request. The second synopsis elaborates on the “silence” from the Supreme Court. Finally, the third was selected for the word choice used in the headline (“Green-Lights”) and the way in which the article described the Supreme Court “allowing” the law to take effect by refusing to consider an emergency petition.

“Abortion Providers’ Baseless Request to Supreme Court to Enjoin Defendants in Texas Heartbeat Act Litigation”Ed Whelan, National Review: “It’s not enough that Texas abortion providers continue to press a lawsuit against the Texas Heartbeat Act that should have been dismissed at the outset for lack of subject-matter jurisdiction. They’re now running to the Supreme Court to try to get the Justices to enjoin state officials from enforcing a law that the law itself prohibits those state officials from enforcing. … The short answer to the abortion providers’ application is that the ordinary rules governing pre-enforcement challenges to laws apply in this case as well, and those ordinary rules mean that the abortion providers lack standing and that there are no defendants against whom they are entitled to obtain relief. They can instead challenge the constitutionality of the Act if and when private plaintiffs undertake to enforce it against them. … The Supreme Court should unanimously deny this request—in a heartbeat.” In summary, Whelan is saying if and when an abortion clinic or doctor gets sued, then they can challenge the constitutionality of the law. Until then, there are technically no defendants so pre-enforcement challenges lack standing which is why the Supreme Court is right to deny the request.

“Hmmm: SCOTUS declines to stop heartbeat-abortion “ban” in Texas” Ed Morrissey, Hot Air: “Does this silence from the Supreme Court speak volumes about the future of Roe v Wade? Despite emergency appeals from the ACLU and others, the court declined to act in any direction as a new law took effect overnight in Texas. … On the other hand, this lack of immediate action may not mean as much as it seems. Technically speaking, the state does not enforce a ban on pregnancies under this law, and in fact it technically doesn’t “ban” abortions at all. Instead, it creates universal standing for anyone who wants to sue doctors and clinics for performing abortions after the fetal-heartbeat stage. Thus, it does not prevent doctors and clinics from performing the abortions — but it creates a vast legal liability if they choose to continue… If the court really does take no action, then that plus their decision to review a Fifth Circuit ruling against an abortion law in Mississippi next term should make the abortion industry very very nervous.”

“Supreme Court Green-Lights Six-Week Abortion Ban” Tristan Justice, The Federalist: “The US Supreme Court ruled early Wednesday to allow a Texas state law to take effect that opens the door for private citizens to sue abortion providers who perform the deadly operation after six weeks of pregnancy. The high court’s ruling came in the form of a denial to consider an emergency petition filed by Texas abortion facilities to challenge the law… This also occurs as the justices prepare to hear a direct challenge to the 1973 Roe v. Wade decision later this year. … Next year, the Supreme Court will issue a ruling over Mississippi’s 15-week abortion ban with arguments expected this fall. Pro-life advocates expect the case to overturn the nearly 50-year precedent established in Roe v. Wade after a 6-3 conservative majority was established on the court last fall.” In summary, Justice is saying by denying to consider the emergency petition, the Supreme Court allowed, or gave the ban the green-light. This could foreshadow how the court is thinking about upcoming abortion-related hearings.

On The Left

Left-leaning outlets and commentators are furious. The selection of remarks below outlines how they think the law will embolden anti-abortion vigilantes and lead to an effective end to Roe v. Wade. This, they say, is all being enabled by silence from the Supreme Court’s 6–3 conservative majority.

“Texas is about to turn private citizens into anti-abortion vigilantes” Los Angeles Times, Editorial Board: “The high court should [have blocked this]. The law… is a breathtaking subversion of the constitutional right to a safe and legal abortion. It’s not surprising that it was concocted by a state legislature notorious for its efforts to hinder women from accessing abortion. … Nowhere in the US is abortion banned as early as six weeks. Abortion is legal up to the point of viability outside the body — roughly 24 weeks into a pregnancy. That line has been established by landmark Supreme Court cases, including Roe vs. Wade (1973). … This time, the state lawmakers have outdone themselves. … it would so scare doctors and clinics — with the threat of citizen-led lawsuits — that they simply stop providing abortions. And that is one goal of the law — to intimidate women’s health clinics, which also provide contraception and OB-GYN services, into discontinuing abortion services. … The Supreme Court has agreed to hear a case from Mississippi that would ban abortions at 15 weeks onward. The nation is already on tenterhooks, waiting to see whether Roe will be left standing. While that larger battle proceeds, the federal courts [should have stopped] this crazy Texas law before it wreaks havoc on women’s lives.”

“The Supreme Court Has Just Two Days to Decide the Fate of Roe v. Wade” Dahlia Lithwick and Mark Joseph Stern, Slate: “Texas Republicans devised this convoluted system in order to prevent federal courts from blocking the law—and so far, they’ve succeeded: On Friday, the 5th US Circuit Court of Appeals abruptly canceled a trial judge’s hearing… effectively allowing the law to take effect… This aggressive intervention forced abortion providers to do what seems almost unthinkable: Ask the U.S. Supreme Court… [Because] SCOTUS [allowed this] to take effect, it will be open season on Texas’ abortion providers. Anyone, anywhere, can sue an ‘abettor’ of any abortion that takes place after six weeks in Texas. … If you’re asking yourself why the Supreme Court would possibly allow the state of Texas to overturn decades of precedent following Roe v. Wade before the court itself decides the issue, the answer seems simple: Whyever wouldn’t they? The current court’s conservative majority always planned to leave the husk of Roe in place, while allowing the states to strangle the fundamentals of the ruling. … Those of us who’ve been contending for years that the Roberts court would never explicitly overturn Roe were quite possibly not cynical enough. We didn’t account for the fact that they would be delighted to leave it to Texas, and to slouch away without speaking a word.”

“The 5th Circuit is staking out a claim to be America’s most dangerous court” Ruth Marcus, Washington Post: “The Supreme Court is, no doubt, the nation’s most powerful court. But the 5th Circuit … is staking out a claim to be the most dangerous — the least wedded to respecting precedent or following an orderly judicial process. … The circuit’s latest shenanigans involve, unsurprisingly, abortion, and Texas’s latest attempt to eviscerate abortion rights. This Texas law, which goes into effect Wednesday, is both blatantly unconstitutional … and an audacious effort to evade judicial review… In this effort to end-run and effectively overturn Roe v. Wade, the 5th Circuit has already proved itself an eager co-conspirator. … Irregular doesn’t begin to describe what’s going on here — but it’s par for the course from the 5th Circuit. This is a court that goes out of its way to reduce procedural obstacles and give a helping hand for litigants whose causes they favor. … It is lunacy to allow a law to go into effect that no one can reasonably argue is constitutional, at least not under current law. To do so threatens the ability of women in Texas to exercise what continues to be their constitutional right; clinics and other providers, meanwhile, may shut down rather than face ruinous fines.”

Flag This: Texas Abortion Ban

According to a recent poll from NBC, “… a majority of Americans — 54 percent — believe that abortion should be legal in all or most cases,” Chuck Todd, Mark Murray and Ben Kamisar report. “That includes clear majorities of women, young Americans, whites with college degrees and those living in the suburbs. But majorities and pluralities of evangelical Christians, rural Americans, older Americans and southerners say that abortion should be illegal in all or most cases.”

Flag This: “The issue has the potential to upend politics in 2022 and 2024 — with the US Supreme Court taking up a case that could overturn the landmark 1973 Roe v. Wade decision.”

Flag Poll: Texas Abortion Ban

Do you support or oppose Texas’ law outlawing abortions after roughly six weeks? Comment below to share your thoughts.

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15 days ago

I support the new law. There is no denying the fact, one is ending a human life during an abortion. Then we wonder why life is so cheap and murderers pay so little for their life ending actions. Even animals are more protected than humans. It’s shameful!!!

Reply to  Tim
15 days ago

Have you ever been pregnant?

Reply to  Allison
15 days ago

Yes, Tim. I have two adult children and lost a child to miscarriage. I still think about and mourn the loss of that child. Abortion is murder. You’re taking a life. Doctors violate their Hypocratic Oath when they perform one. There are many ways to prevent pregnancy. Abortion should not be used as a means of birth control and that is what it has become.

15 days ago

I don’t think the original Supreme Courts decision that “viable” is the same as “alive” at least as defined in your write-up. We have enough people in hospitals on a high level of care where they essentially are not “viable” either without the tubes they are on. I don’t know the TX law well enough to know if there are “exceptions” to support any issues and what exactly other items are addressed in this other than there’s a lot of posturing on both sides. I think TX is attempting to define what makes an entity “alive” and I think it’s a darn shame that the medical community is bypassing doing – they need to step up and follow their science and speak out. Also, there is often a psychological toll on the women who undergo abortion and there is nothing to support these women afterward and it is ignored and I wonder why – is it because to do so would impart the feeling that already there is a connection between the mother and child? I think it’s sad that we currently appear to need to support legalization of killing these soon-to-be children due to circumstances and/or not bothering to use prevention. I realize other women have different perspectives and I respect their right to disagree but I don’t believe the fetus is effectively just a pimple or growth like cancer in the body.

T Bender
14 days ago

I do support this Supreme Court decision. The right to an abortion is no where in the Constitution. Therefore the fate of abortion should be left to each state. Let the regulation of the procedure be made at the state level. And let the legislative process operate as intended.

14 days ago

One has to wonder how often abortion is simply used as birth control…