The KSLR Forum

Latest Post 09/10/21

Texas’ six-week abortion ban: how did this happen and what will happen next?

Emily Ottley[1]

Introduction

Unlike in England and Wales, gestators (pregnant persons) in the United States of America (US) have a constitutional right to abortion until the foetus becomes viable.[2] This is the point at which the foetus could survive outside the womb.[3] Despite this, a law that effectively prohibits abortion from just six weeks after a gestator’s last menstrual period came into effect in Texas on Wednesday 1st September 2021.[4] The enforcement of the Texan law was temporarily blocked by a US District Judge on Wednesday 6th October 2021 but later reinstated by the US Court of Appeals for the Fifth Circuit on Friday 8th October 2021, pending a further order by the appellate court.[5] This blog post will consider how it was possible for the Texan law to be enforceable for 36 days initially and the likely future for both the Texan law and US abortion law more widely. Comparisons with the position in England and Wales will be made throughout.

 

The Texan law

According to the Texan law, it is unlawful for doctors to perform an abortion once they are able to detect cardiac activity in an embryo.[6] This is usually possible from 6 weeks after a gestator’s last menstrual period.[7]  The Texan law refers to this cardiac activity as a ‘fetal heartbeat’, but this is misleading because the embryo’s heart is not fully developed at this point.[8]  Proponents of so-called ‘heartbeat laws’ argue that the embryo should be afforded rights and protections because a ‘heartbeat’ is a sign of life and therefore personhood.[9] Further, the phrase ‘fetal heartbeat’ is used to evoke a strong emotional response in the general public.[10]  Perhaps for the same reason, ‘unborn child’ is used by the Texan law to refer to the embryo.[11]

The Texan law includes a limited exception for an abortion after cardiac activity can be detected where a ‘medical emergency’ necessitates an abortion, but the law is nevertheless extremely restrictive.[12]  Indeed, a Texan gestator may not have realised that she is pregnant until the opportunity to have a (lawful) abortion has passed.[13] In contrast, a gestator in England and Wales can have an abortion up to 24 weeks of pregnancy.[14] Further, there is no time limit for an abortion in England and Wales where there is a risk that the gestator would suffer ‘grave permanent injury’, where the gestator’s life is at risk, and where there is a risk that the foetus would be born with ‘such physical or mental abnormalities as to be seriously handicapped’.[15]

It is clear from history that such a restrictive law will not prevent gestators terminating unwanted pregnancies. The number of abortions that occur may even increase.[16] Gestators will suffer dangerous backstreet abortions or travel to get an abortion.[17] Such arguments are familiar to those of us in England and Wales. Firstly, preventing dangerous backstreet abortions was one of the primary motivations for enacting the Abortion Act 1967, which allows gestators to terminate pregnancies lawfully.[18] Secondly, a significant number of gestators from Northern Ireland (where abortion law was previously more restrictive than elsewhere in the United Kingdom) have travelled to England to have an abortion.[19]

 

How was it possible for the Texan law to be enforceable for 36 days initially?

There have been attempts in many other US States to restrict abortion in a similar way to Texas and ‘heartbeat bills’ have been passed into law in 8 of those States.[20] However, only the Texan law has come into effect.[21] This is because the courts have granted preliminary injunctions which have “blocked” the law from coming into effect in the other 7 states.[22] However, the courts failed to act before the Texan law came into effect.[23]

Further, in a 5-4 vote, the Supreme Court of the United States (SCOTUS) rejected an application to grant an injunction which would have prevented the enforcement of the Texan law.[24] The application failed at the SCOTUS due to a unique feature of the Texan law. This is that the enforcement of the law will not be undertaken by the State, but by private citizens.[25] Private citizens can sue both individuals who perform an abortion and individuals who aid or abet the performance of an abortion.[26] The law encourages private citizens to sue by awarding them $10,000 in ‘statutory damages’ if their lawsuit is successful.[27] This feature of the Texan law was problematic for the applicants seeking injunctive relief because existing precedent prevents those seeking to challenge the constitutionality of a law from suing the state directly, but allows them to sue the state officer who would enforce that law.[28] In the case of the Texan law, no such state officer exists because the law is enforced by private citizens. Therefore, the majority statement observed that the application presented ‘complex and novel antecedent procedural questions on which [the applicants] have not carried their burden’.[29]

As Roberts CJ and Sotomayor J noted in their dissenting statements, the Texan law was set up this way intentionally to protect the Texan law from challenge.[30] For this reason, they would have granted the injunction.[31] Breyer J, dissenting, would also have granted the injunction because he doubted that the procedural issues should ‘make a critical legal difference’ where a constitutional right is at stake.[32] Kagan J’s dissent made clear her concern about how the court had reached its decision, ie. ‘without full briefing or argument, and after less than 72 hours’ thought’.[33]

It is important to emphasise that the decision of the SCOTUS to refuse an injunction does not mean that the Texan law is constitutional. Indeed, the majority statement acknowledged that the applicants ‘raised serious questions regarding the constitutionality of the Texas law at issue’.[34] Sotomayor J went further by stating that ‘[t]he Act is clearly unconstitutional under existing precedents’.[35] Kagan J also described the Texan law as ‘patently unconstitutional’.[36] Further, President Joe Biden has made the same point in a statement.[37] The unconstitutionality of the Texan law will be discussed in the next section.

 

The future of the Texan law and US abortion law more widely

The way in which the Texan law has been set up does not mean that the constitutionality of the law can never be challenged.[38] Indeed, the Texan law could be challenged by the defendant in a citizen led lawsuit.[39] However, the preliminary injunction that was granted by US District Judge Pitman on Wednesday 6th October 2021 was the result of a challenge by the US Justice Department in a lawsuit brought against the State of Texas.[40]  It is very unusual for the US to sue States, but US District Judge Pitman noted that this approach was ‘warranted’ in this case because the Texan law was designed to avoid challenge by private parties.[41]

US District Judge Pitman held that a preliminary injunction preventing the enforcement of the Texan law was ‘appropriate and warranted to prevent irreparable harm to the United States’ interest in protecting the constitutional rights of its citizens.’[42] This meant that Texan citizens were unable to bring lawsuits to enforce the law until the injunction was temporarily stayed two days later by the United States Court of Appeal for the Fifth Circuit.[43] This is merely an ‘administrative stay’, however, pending a further order (expected in the next few days) by the appellate court.[44] This further order could grant a lengthier stay of the injunction, allowing the Texan law to be enforced while the litigation continues.

This case may eventually reach the SCOTUS and this time the court would be able to rule on the constitutionality of the Texan law. As things stand, it is likely that the SCOTUS would strike down the Texan law as unconstitutional.[45] This is because ‘indisputable binding precedent holds that pre-viability bans on abortion are unconstitutional’ and ‘there can be no question that [the Texan law] operates as a ban on pre-viability abortions’, as US District Judge Pitman observed.[46]

Even if the SCOTUS regard the Texan law as regulating (rather than banning) pre-viability abortion, as Texas contended in the US District Court, the Texan law would still be unconstitutional because it clearly places an ‘undue burden’ on gestators.[47] Indeed, other ‘heartbeat laws’ have previously been prevented from being enforced for this reason.[48]

An ‘undue burden’ is any regulation that ‘has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion…’[49] To demonstrate the ‘undue burden’ placed on gestators by the Texan law, US District Judge Pitman cited evidence that between 80% and 95% of abortions previously provided in Texas are prohibited by the Texan law.[50] He then observed that Texan gestators who are unable to get an abortion in Texas must travel to other States, where the clinics may be struggling to cope with the increase in demand for their services and the law on abortion may still be fairly restrictive, to terminate their pregnancies.[51] Clearly, this is a substantial obstacle for a gestator seeking an abortion. 

Given that the Texan law is patently an ‘undue burden’ on gestators, it seems impossible for Texas to argue that it is constitutional at the SCOTUS.[52] However, the Texan law itself hints at a possible argument that might be made in a future challenge to its constitutionality. Indeed, the Texan law claims that a ‘fetal heartbeat has become a key medical predictor that an unborn child will reach a live birth’.[53] This is relevant because the undue burden standard does not apply after the point of viability. Such an argument is unlikely to succeed, however, because the claim in the Texan law speaks to the viability of the pregnancy, not the viability of the embryo/foetus. It is the latter sense in which viability is used in the precedent on the constitutionality of pre-viability abortion.[54]

However, there is a real risk that the Texan law, and any future ‘heartbeat laws’, may not be unconstitutional for much longer. This is because the SCOTUS will revisit the question of constitutional protection for abortion next year in Dobbs v Jackson Women’s Health Organization.[55] Oral arguments will be heard by the SCOTUS on Wednesday 1st December 2021.[56] Given the composition of the SCOTUS since President Donald Trump’s nominees were appointed, constitutional protection for abortion may well be removed.[57] Such considerations are alien to those of us in England and Wales, where judges are nominated for the Supreme Court of the United Kingdom by an independent commission.[58] If constitutional protection for abortion is removed by the SCOTUS in Dobbs, very restrictive abortion laws like the one in Texas might not be struck down on constitutional grounds and such laws will inevitably become more common across the US.[59]

 

Conclusion

Very restrictive abortion law that effectively prohibits abortion from just six weeks after a gestator’s last menstrual period was enforceable in Texas for 36 days initially because of the law’s unique enforcement scheme, which posed procedural issues for the SCOTUS. The enforcement of the Texan law was temporarily blocked but later reinstated (pending a further order) as part of legal proceedings that may reach the SCOTUS. If the case does reach the SCOTUS, it is likely that the Texan law will be struck down as unconstitutional. However, there is a real risk that the constitutional protection for abortion will be removed by the SCOTUS in another case next year. This would protect the Texan law and allow more ‘heartbeat laws’ to emerge across the US.

 

[1] Emily Ottley is a PhD student at King’s College London. She is researching abortion law.

[2] A, B and C v Ireland [GC] ECHR 2010-VI 185, para 216; Roe v Wade 410 US 113, 163
(1973); Planned Parenthood v Casey 505 US 833, 872-877 (1992).

[3] In Casey, the SCOTUS suggested that a foetus was viable during the third trimester of
pregnancy. See: Planned Parenthood v Casey 505 US 833, 272 (1992). In more recent cases, the SCOTUS has acknowledged that the point of viability might occur during the second trimester. See for example: Whole Woman’s Health v Hellerstedt 579 US 582, 620 (2016). Viability is a much-contested subject in medical science. Nevertheless, it is clear that an embryo is not viable at just 6 weeks of pregnancy.

[4] Mary Tuma, ‘Most extreme abortion law in US takes effect in Texas’ The Guardian (2
September 2021) <https://www.theguardian.com/us-news/2021/sep/01/texas-abortion-law-supreme-court> accessed 3 September 2021.

[5] United States of America v The State of Texas F Supp 3d, 112-113 (WD Tex 2021).
The order by the US Court of Appeals for the Fifth Circuit can be found here:
<https://static.texastribune.org/media/files/11abafa62a7e026327fad3adcf2914b3/5th-circuit-appeal-granted-doj-abortion.pdf?_ga=2.94283166.2084294880.1633770397-1989600753.1633614440> accessed 9 October 2021.

[6] Tex Health and Safety Code Ann §171.204.

[7] Thomas Gellhaus, ‘The American College of Obstetricians and Gynaecologists Opposes
Fetal Heartbeat Legislation Restricting Women’s Legal Right to Abortion’ (ACOG, 18
January 2017) <https://www.acog.org/news/news-releases/2017/01/acog-opposes-fetal-heartbeat-legislation-restricting-womens-legal-right-to-abortion> accessed 3 September 2021.

[8] Tex Health and Safety Code Ann §171.201(1); Eleftheria Pervolaraki and others, ‘Antenatal architecture and activity of the human heart’ (2013) 3 Journal of the Royal Society Interface Focus <http://dx.doi.org/10.1098/rsfs.2012.0065> accessed 3 September 2021.

[9] Dabney Evans and Subasri Narasimhan, ‘A narrative analysis of anti-abortion testimony and legislative debate related to Georgia’s fetal “heartbeat” abortion ban’ (2020) 28 Sexual Health and Reproductive Matters <https://doi.org/10.1080/26410397.2019.1686201> accessed 3 September 2021.

[10] This point was made by Dr Jennifer Kerns (an obstetrician-gynaecologist and Associate Professor at the University of California) in conversation with National Public Radio, see: Selena Simmons-Duffin, ‘The Texas Abortion Ban Hinges on ‘Fetal Heartbeat’. Doctors Call That Misleading.’ NPR (3 September 2021) <https://www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnt-a-medical-term-but-its-still-used-in-laws-on-abortion?t=1633715517909> accessed 9 October 2021.

[11] Tex Health and Safety Code Ann §171.201(3).

[12] Tex Health and Safety Code Ann §171.205. Note: the law does not specify what will constitute a ‘medical emergency’.

[13] This point was noted by Sotomayor J in Whole Woman’s Health v Jackson 594 US (2021) [Sotomayor J].

[14] Abortion Act 1967, s1(1)(a).

[15] Abortion Act 1967, s1(1)(b), s1(1)(c) and s1(1)(d).

[16] Jonathan Bearak and others, ‘Unintended pregnancy and abortion by income, region, and the legal status of abortion: estimates from a comprehensive model from 1990-2019’ (2020) 8 The Lancet Global Health <https://doi.org/10.1016/S2214-109X(20)30315-6> accessed 3 September 2021.

[17] When ‘medically unnecessary’ procedures were prohibited in Texas in response to the Covid-19 pandemic between 22 March 2020 and 21 April 2020, the number of gestators who travelled outside of Texas for an abortion increased by almost 400%. See: Kari White and others, ‘Changes in abortion in Texas Following an Executive Order Ban During the Coronavirus Pandemic’ (2021) 325 JAMA <https://doi.org/10.1001/jama.2020.24096> accessed 3 September 2021. Further, one study estimated that 829,000 illegal or self-induced abortions took place in the US in 1967 (prior to abortion receiving constitutional protection). See: James Abernathy, Bernard Greenberg and Daniel Horvitz, ‘Estimates of Induced Abortion in Urban North Carolina’ (1970) 7 Demography 19, 26.

[18] HC Deb 22 July 1966, vol 732, col 1075.

[19] Department of Health and Social Care, ‘Abortion Statistics, England and Wales: 2019’ (Department of Health and Social Care 2019) para 2.38 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/891405/abortion-statistics-commentary-2019.pdf> accessed 3 September 2021.

[20] They are Arkansas, Georgia, Iowa, Mississippi, North Dakota, Ohio, South Carolina, and Texas. See: Guttmacher Institute, ‘State Bans on Abortion Throughout Pregnancy’ Guttmacher Institute (1 September 2021) <https://www.guttmacher.org/print/state-policy/explore/state-policies-later-abortions> accessed 3 September 2021.

[21] Guttmacher Institute, ‘State Bans on Abortion Throughout Pregnancy’ Guttmacher Institute (1 September 2021) <https://www.guttmacher.org/print/state-policy/explore/state-policies-later-abortions> accessed 3 September 2021.

[22] ibid. See for example: SisterSong Women of Color Reproductive Justice Collective v Kemp 410 F Supp 3d 1327, 1350 (2019).

[23] Mary Tuma, ‘Texas Abortion Providers Ask Supreme Court to Halt Unprecedented Abortion Law’ The Guardian (30 August 2021) <https://www.theguardian.com/us-news/2021/aug/30/texas-abortion-law-sb8-supreme-court> accessed 3 September 2021; Mary Tuma, ‘Most extreme abortion law in US takes effect in Texas’ The Guardian (2
September 2021) <https://www.theguardian.com/us-news/2021/sep/01/texas-abortion-law-supreme-court> accessed 3 September 2021.

[24] Whole Woman’s Health v Jackson 594 US (2021) [Thomas J, Alito J, Gorsuch J, Kavanaugh J and Barrett J].

[25] Tex Health and Safety Code Ann §171.207. This was described by Roberts CJ in his dissent as ‘unusual’ and ‘unprecedented’. See: Whole Woman’s Health v Jackson 594 US (2021) [Roberts CJ].

[26] Tex Health and Safety Code Ann §171.208.

[27] Tex Health and Safety Code Ann §171.208.

[28] Ex Parte Young 209 US 123, 155-157 (1908).

[29] Whole Woman’s Health v Jackson 594 US (2021) [Thomas J, Alito J, Gorsuch J, Kavanaugh J and Barrett J].

[30] Whole Woman’s Health v Jackson 594 US (2021) [Roberts CJ] and [Sotomayor J].
US District Judge Pitman made the same point a number of times throughout his ruling in United States of America v The State of Texas F Supp 3d (WD Tex 2021). See for example: ‘Fully aware that depriving its citizens of this right would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that’ (1-2). And ‘[The Texan law] was designed to stymie judicial review’ (13-14).

[31] Whole Woman’s Health v Jackson 594 US (2021) [Roberts CJ] and [Sotomayor J].

[32] Whole Woman’s Health v Jackson 594 US (2021) [Breyer J].

[33] Whole Woman’s Health v Jackson 594 US (2021) [Kagan J]. Robert CJ expressed a similar concern, see: Whole Woman’s Health v Jackson 594 US (2021) [Roberts CJ]. Note: the decision was made via the expediated ‘shadow docket’ process, from which orders are unsigned and often unexplained. See: William Baude, ‘Foreword: The Supreme Court’s Shadow Docket’ (2015) 9 New York University Journal of Law & Liberty 1. A recent increase in the use of the shadow docket (especially when used in cases of great significance) has attracted criticism both in the media and academic literature. See for example: Stephen Vladeck, ‘The Solicitor General and the Shadow Docket’ (2019) 133 Harvard Law Review 123; Charlie Savage, ‘Texas Abortion Case Highlights Concern Over Supreme Court’s “Shadow Docket”’ The New York Times (4 September 2021) <https://www.nytimes.com/2021/09/02/us/politics/supreme-court-shadow-docket-texas-abortion.html> accessed 5 September 2021.

[34] Whole Woman’s Health v Jackson 594 US (2021) [Thomas J, Alito J, Gorsuch J, Kavanaugh J and Barrett J].

[35] Whole Woman’s Health v Jackson 594 US (2021) [Sotomayor J].

[36] Whole Woman’s Health v Jackson 594 US (2021) [Kagan J].

[37] President Joe Biden, ‘Statement by President Joe Biden on Supreme Court Ruling on Texas SB8’ (2 September 2021) <https://www.whitehouse.gov/briefing-room/statements-releases/2021/09/02/statement-by-president-joe-biden-on-supreme-court-ruling-on-texas-law-sb8/> accessed 3 September 2021.

[38] Whole Woman’s Health v Jackson 594 US (2021) [Thomas J, Alito J, Gorsuch J, Kavanaugh J and Barrett J] and [Roberts CJ].

[39] Alan Braid, ‘Texan doctor who violated state’s abortion ban is sued, launching test of constitutionality’ The Washington Post (20 September 2021) <https://www.washingtonpost.com/politics/courts_law/texas-abortion-doctor-sued/2021/09/20/f5ab5c56-1a1c-11ec-bcb8-0cb135811007_story.html> accessed 7 October 2021.

[40] United States of America v The State of Texas F Supp 3d, 13 (WD Tex 2021).

[41] United States of America v The State of Texas F Supp 3d, 48-49 and 110 (WD Tex 2021).

[42] United States of America v The State of Texas F Supp 3d, 107 (WD Tex 2021). On preliminary injunctions, see: Winter v Natural Resources Defense Council Inc 555 US 7 (2008).

[43] United States of America v The State of Texas F Supp 3d, 109 (WD Tex 2021).

[44] The order by the US Court of Appeals for the Fifth Circuit can be found here:
<https://static.texastribune.org/media/files/11abafa62a7e026327fad3adcf2914b3/5th-circuit-appeal-granted-doj-abortion.pdf?_ga=2.94283166.2084294880.1633770397-1989600753.1633614440> accessed 9 October 2021.

[45] The courts in England and Wales do not have an equivalent power to invalidate laws that unjustifiability interferes with the European Convention on Human Rights. Instead, English and Welsh courts can issue a ‘declaration of incompatibility’. See: Human Rights Act 1998, s4. On judicial review and striking down laws in the US, see: Marbury v Madison 5 US 137 (1803).

[46] United States of America v The State of Texas F Supp 3d, 72-73 (WD Tex 2021).

[47] United States of America v The State of Texas F Supp 3d, 73 and 77 (WD Tex 2021). On ‘undue burden’, see: Planned Parenthood v Casey 505 US 833, 872-877 (1992).

[48] See for example: SisterSong Women of Color Reproductive Justice Collective v Kemp 472 F Supp 3d 1297, 1314 (2020).

[49] Planned Parenthood v Casey 505 US 833, 872-877 (1992).

[50] United States of America v The State of Texas F Supp 3d, 84 (WD Tex 2021). This is as Sotomayor J predicted in Jackson, see: Whole Woman’s Health v Jackson 594 US (2021) [Sotomayor J].

[51] United States of America v The State of Texas F Supp 3d, 86-89 (WD Tex 2021).

[52] As Sotomayor J noted in Jackson, ‘the respondents did not even try to argue [that the Texan law was constitutional]’. See: Whole Woman’s Health v Jackson 594 US (2021) [Sotomayor J].

[53] Tex Health and Safety Code Ann §171.202(1).

[54] Planned Parenthood v Casey 505 US 833, 872-877 (1992).

[55] Adam Liptak, ‘Supreme Court to Hear Abortion Case Challenging Roe v Wade’ The New York Times (17 May 2021) <https://www.nytimes.com/2021/05/17/us/politics/supreme-court-roe-wade.html> accessed 4 September 2021.

[56] Lauren Gambino, ‘US Supreme Court to hear arguments in Mississippi case that threatens Roe v Wade’ The Guardian (20 September 2021) <https://www.theguardian.com/world/2021/sep/20/us-supreme-court-mississippi-roe-v-wade> accessed 7 October 2021.

[57] Adam Liptak, ‘Supreme Court to Hear Abortion Case Challenging Roe v Wade’ The New York Times (17 May 2021) <https://www.nytimes.com/2021/05/17/us/politics/supreme-court-roe-wade.html> accessed 4 September 2021.

[58] Constitutional Reform Act 2005, s26.

[59] Other US States (such as Florida) have already started to introduce copies of the Texan law, see: Gloria Oladipo, ‘Anti-abortion bill modelled after Texas ban introduced in Florida’ The Guardian (23 September 2021)
<https://www.theguardian.com/world/2021/sep/23/florida-anti-abortion-bill-texas-ban> accessed 7 October 2021.