For a couple of months now, the Texas abortion law - also known as SB8 - has been active. SB8 is problematic in various ways and has therefore given rise to a lot of discussions. Firstly, the law bans women from having an abortion after cardiac activity has been detected, which is around 6 weeks. Most women do not even know that they are pregnant at that time. Not allowing women to have an abortion after 6 weeks makes this law unconstitutional, as the case of Roe v. Wade gives women the right to have an abortion until viability. This is the time when a fetus is able to survive outside of the womb, around 24 weeks. Adding to that, the Texas abortion law provides no exceptions for victims of rape or incest. One would think, as this law breaks with the constitution, that this could be easily challenged in court. Unfortunately, this is not the case. Nevertheless, the Texas abortion law is just the beginning, as the chances of Roe v. Wade being overturned are becoming higher.
What makes this law different from other abortion-restricting laws is that the state of Texas is not going to enforce the law, but leaves the enforcement to private citizens. This means that any citizen of the United States can sue anybody that helped a person receive an abortion. These people include doctors and clinics, but also Uber drivers that drive the person to the abortion clinic. If the lawsuit is won by the plaintiff, a sum of ten thousand dollars can be claimed from the person that is sued, plus a reimbursement of all legal expenses. By many critics, this is called the bounty scheme. This scheme can turn citizens and neighbors against each other and gives the anti-abortion activists even more incentive to go after everyone involved with abortions.
This notion of the bounty scheme is not new. Critics have made the comparison to the Fugitive Slave Act from 1850. Back in 1850, the US government provided a bounty for the recapture of fugitives from slavery. Similar to the Texas abortion law, if somebody got caught helping a fugitive escape, that person could be fined up to 35.000 dollars (under the current inflation rate). Due to the way these laws are constructed with the bounty scheme, the law is extremely difficult to challenge in federal court, as no state official is enforcing the law and therefore no defendant can be identified. People who are confronted with an SB8 lawsuit can argue that this law breaks with their constitutional right. However, even if a state judge would rule in their favor, it only counts for that specific case. The defendant is not even cleared of getting sued again in other counties of Texas. Next to that, only a very rich person can handle all these lawsuits in the first place, because even if the defendant wins, the SB8 law does not allow defendants to reimburse their legal fees.
The rulings of the state court have no impact on the enactment of SB8 and in federal court it is hard to even file a lawsuit against it. What does this mean for other constitutional rights? In the Supreme Court hearing of November 1, even conservative Justices Amy Coney Barret and Brett Kavanaugh were not convinced by the defendability of Texas’ way of enforcing the abortion law, although they voted against the temporary blocking of SB8 when the law took effect just a month before. Kavanaugh noted that “there is a loophole that’s been exploited here or used here” and that if this law would be allowed to stand other constitutional rights could be limited, such as free speech rights or free exercise of religion rights. He mentioned an example of gun laws, saying for example that everyone who sells an AR-15 is liable for a million dollars to any citizen that would sue them. So this part of the law even strikes some conservative Justices. It makes them think that it may not be such a good idea to keep this law in place, while they were fine with letting this law break with the constitution in the first place.
US Solicitor General, Elizabeth Prelogar, also mentioned this point in court, stating that Texas’ position is that no one can sue; not the women whose rights are directly affected, not the providers who are now unable to provide these women with care, and not the United States in this suit. She stated: “If they can do that then no constitutional right is safe, no constitutional decision from this court is safe.” The question that the conservative Justices are assessing is that of the willingness to sacrifice the authority and legitimacy of the federal court in order to let the Texas abortion ban stand. However, it does not stop with SB8. Many red states have laws banning abortion all set, with only the federal courts’ approval missing. Just this Wednesday, December 1st, the Supreme Court heard arguments in the Mississippi case Dobbs v Jackson Women’s Health Organization, which is seen as the most significant abortion rights case since Roe v Wade. The court appeared to be leaning toward letting the Mississippi abortion law, which bans abortion after 15 weeks, stay in place. This would have a tremendous effect across the United States as many states will be enforcing their abortion banning laws.
During the hearing, liberal Justice Elena Kagan stated that precedent is there to prevent people from thinking that the Supreme Court is a political institution that will go back and forth on issues depending on whose voice is the loudest. She mentions that in a case like this there needs to be a strong justification for overruling Roe v. Wade besides just claiming that the case is wrong. Justice Sonia Sotomayor also pointed out the threat to other precedents that protect various rights, once again making clear that there is an actual risk of this being applied to other constitutional rights. This is a big argument for the Justices to not rule in favor of the Mississippi law. Next to that, certain Justices point out fears that the trust in the Supreme court would reduce substantially if they would rule in favor of the Mississippi law, as the impression of the Court being a non-partisan body, would be way less believable.
With a decision in the Dobbs v Jackson Women’s Health Organization case not expected until late June, we have to wait and see what is going to happen to almost 50 years of Roe and the shaky public trust in the Court. Would this precedent be overruled, various states will limit the timespan or ban abortions completely. Nonetheless, the Supreme Court can state that they are not formally overruling Roe v. Wade and say that women still have the right to have an abortion. However, they could erase the ‘viability line’, which would give the opportunity to states to prohibit abortions at whatever point they like. That would mean that in a lot of states women will not be able to get an abortion even if they theoretically do have that right.
The abortion-rights issue in the US right now goes from letting a law like the Texas Abortion law stay in place to the very possibility of Roe v. Wade no longer setting precedent. The legitimacy of the Supreme Court is at stake here. If the Court is actually willing to alter or overrule Roe v Wade in this manner, people need to be prepared that this Court is also willing and able to extend this approach to the constitution for any other federal constitutional right. This should make even conservatives think about the stability of the constitution and how they want the future of this crucial institutional body to look like.
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