The Texas Supreme Court unanimously ruled on Friday that the state’s fetal heartbeat law can remain in place. The court ruling shut down the last avenue abortion clinics had to challenge SB8, the state law that prohibits abortion after six weeks. A fetal heartbeat can usually be detected by six weeks. Pro-abortion critics of the law argue that most women don’t know they are pregnant before the six-week mark.
The U.S. Supreme Court dismissed the federal lawsuit to preemptively block the law in December but allowed the lawsuit against several state licensing board officials to continue. The lawsuit addresses the concern that abortion clinics can face penalties for providing abortions after six weeks. What makes SB8 unique is that it empowers citizens to lodge complaints against abortion clinics that disregard the law, which results in a civilian enforcement of the law, not enforcement by local or state officials. Private citizens who witness a violation can call in their information to a tip line or notify local officials.
The lawsuit moves back to the US 5th Circuit Court of Appeals. The 5th Circuit Court leans conservative and it is expected to stop what is left of the lawsuit.
Texas Right to Life Media Director Kimberlyn Schwartz responded to the good news: “This is a big victory for the TX Heartbeat Act! We have said from the beginning that abortionists’ lawsuit should be dismissed, and we’re grateful that the law will continue saving thousands of lives.”
During arguments before the court, State Solicitor General Judd Stone responded that the law clearly states that enforcement is private. Stone told the justices that there is no “ordinary English interpretation that entertains any possibility of public enforcement.”
The ruling was not unexpected by pro-abortion groups. If the Supreme Court overturns Roe v. Wade this summer, it is likely that more red states will ban abortion as the Texas law does.
Speaking with Politico in January, Center for Reproductive Rights attorney Marc Hearron described the situation as bleak after both the U.S. Supreme Court and the Fifth Circuit Court of Appeals refused to block the law.
“There’s a part of our case left against these licensing officials, and it’s an important part of the case, but people need to understand that even what’s left is being delayed and strung out while patients across Texas are denied their constitutional rights,” Hearron said.
The Texas Supreme Court sided with the state. SB8 provides for civilian enforcement which takes it out of the hands of local and state enforcement.
“We agree that these laws grant the state agencies and their executives broad authority to enforce other state laws — including abortion-restriction laws — through the professional-disciplinary process, at least unless the other laws provide otherwise,” the Texas Court wrote. “But we conclude that the Heartbeat Act expressly provides otherwise.”
Does the ban on abortion end all abortion in Texas? No. If a woman goes for an abortion before a fetal heartbeat is detected, the procedure can be performed. What is likely is that many clinics will continue to take their chances and perform abortions. They risk private enforcement action. The Texas law has not ended abortion in general for Texas women, either, because women are crossing state lines and getting abortions in neighboring states. Planned Parenthood clinics in five nearby states report an increase of nearly 800% in abortion patients from Texas. The increase has caused waiting lists in out-of-state abortion clinics.
For instance, abortion patients at the Hope Medical Group for Women facility in Shreveport, Louisiana, are facing a one-month wait for appointments, clinic administrator Kathaleen Pittman told reporters last month.
She said that before the six-week ban, 18% of her clinics’ patients were Texans. By October, Texas made up 55% of the clinics’ patients and, as of late February, they amounted to 64% of the clinic’s patients.
“The situation is becoming increasingly dire, and now neighboring states — where we have been sending patients — are about to pass similar bans. Where will Texans go then?” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, said after the decision. “The more states that pass these bans, the harder it will be for anyone in this region to get abortion care.”
The U.S. Supreme Court is expected to rule on a case before it on Mississippi’s 15-week abortion ban in late spring or early summer. Both sides of the abortion argument expect SCOTUS to scale back or fully overturn Roe v Wade. Then abortion law will likely go back to states, as it was pre-Roe v Wade. Some states will keep abortion legal, while others will not, as it was before 1973.