In a show-down of wills about perhaps the most contentious issue for the span of more than 50 years, the U.S. Justice Department is suing the state of Texas over its controversial new law that prohibits abortion once medical professionals can detect cardiac activity — usually around six weeks. Although courts have blocked other states from enforcing similar measures, Texas is using a strange loophole of sorts. As the Associated Press (AP) reports, “Texas’ law differs significantly because it leaves enforcement to private citizens through civil lawsuits instead of criminal prosecutors.”
The move by the Justice Department comes in response to a 5-4 ruling by the U.S. Supreme Court that upheld the Texas law. The justices wrote:
The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.
Essentially, SCOTUS asserted that since there is no state enforcement mechanism, it would be impossible to keep track of any potential lawsuits and their outcomes on an individual level, thereby obviating intervention. In reality, the law, known as the Texas Heartbeat Act, sets up a citizen-driven system of judgment and punishment, turning citizens into self-deputized law enforcement officers.
Shayna Medley ’17, lecturer on law at Harvard Law School and reproductive rights litigator, explains it this way: “That means that anyone – such as individual anti-abortion vigilantes – can sue anyone that they suspect has either provided an abortion earlier than six weeks or aided and abetted the performance of an abortion earlier than six weeks.”
By concocting the abortion law in such a manner, Texas shields itself behind a veil of private citizens and mob rule, making a mockery of our democratic systems in general, and our belief in rational, objective deliberation specifically. Chief Justices Roberts, Bryer, and Kagan put it this way in their dissent:
“The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.”
As a former Texan, I have to say, I am embarrassed for my previous state. I have always been rather conservative, and have never liked the idea of abortion, especially late-term abortion. But this law has the stink of vigilantism reminiscent of the Old West, threatening to plunge Texans, and by extension, our entire nation into a whirlwind of chaos, conflict, and the concomitant violence that will no doubt follow. As Justices Sotomayor, Breyer, and Kagan wrote in their dissent: “In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”
To make matters worse, there is a built-in economic incentive to pursue ligation against doctors performing an abortion past the 6-week threshold. As reported in Texas Monthly, “. . .the bill also incentivizes lawsuits by awarding plaintiffs suing physicians a minimum of $10,000 in damages plus court fees.” If that sounds like a bounty, that’s because it is.
As The Texas Medicla Association frames it: “SB 8 allows for a bounty that encourages practically any citizen to file a cause of action against physicians, other health care professionals, and anyone who ‘aids or abets,’ based on a suspicion. If permitted to proceed, this law will be precedent-setting and could normalize vigilante interference in the patient-physician relationship in other complex, controversial medical or ethical situations.”
The law also awkwardly attempts to define when life begins, stating, “A physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” However, critics have attacked the notion of a “fetal heartbeat.”
Dr. Nisha Verma, an OB-GYN who specializes in abortion care and works at the American College of Obstetricians and Gynecologists, explains, “When I use a stethoscope to listen to an [adult] patient’s heart, the sound that I’m hearing is caused by the opening and closing of the cardiac valves,” adding “The sound generated by an ultrasound in very early pregnancy is quite different. At six weeks of gestation, those valves don’t exist. The flickering that we’re seeing on the ultrasound that early in the development of the pregnancy is actually electrical activity, and the sound that you ‘hear’ is actually manufactured by the ultrasound machine.”
Don’t misinterpret me here, dear readers. I am not arguing that a baby is a “ meaningless clump of cells” devoid of life, nor that the sound from an ultrasound is not indicative of a living being. I still believe that life begins at conception. I always have, and always will.
But that’s not the point here, at all. By using the heartbeat as an arbitrary marker and artificial construct, by taking it upon themselves to pronounce where life begins by specifying a junction that they imbue with medical significance and precedence that does not exist, Texas legislatures that crafted or voted for this law have built their litigious castle upon sand, and it cannot stand up against the winds of reason and logic.
Perhaps the saddest part is that for a variety of reasons, the amount and rate of abortions have been dropping consistently over the past several years. Here are some statistics from the Guttmacher Institute based on abortion clinic data:
- The number of abortions fell by 196,000—a 19% decline from 1,058,000 abortions in 2011 to 862,000 abortions in 2017.1,2
- The abortion rate (the number of abortions per 1,000 women aged 15–44) fell by 20%, from 16.9 in 2011 to 13.5 in 2017.
- The abortion ratio (the number of abortions per 100 pregnancies ending in either abortion or live birth) fell 13%, from 21.2 in 2011 to 18.4 in 2017.
Admittedly, abortion is a complex issue, and there are a number of reasons for the decline. As reported in USA Today: “The CDC’s 2018 report on the declining abortion rate says that in addition to more contraceptive use, the availability of abortion providers and regulations such as mandatory waiting periods and parental consent could also be contributing to fewer women having abortions.” So yes, perhaps restrictions do have a place, though some of these laws may be punitive to women from poverty, but that is an argument for another time.
Still, the majority of people, even most who support abortion, understand the gravity of the decision. If Texas really wants to build upon that sentiment, along with the current trend of decline in abortions, they would be working on providing access to birth control as well as providing other means of support should a woman decide to carry to term, such as pre-and post-natal care, and when warranted, subsidized and facilitated adoptions. Such actions would be in concert with the 21st century, rather the post-Resocunstruction-era approach they have concocted with this abomination of justice.
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