With its Roe v. Wade decision in 1973, the Supreme Court declared that American women, no matter where they lived, had a constitutional right to end an unwanted pregnancy.
On Wednesday, a Texas law that effectively outlaws abortion in the state went into effect. The court voted 5-4 shortly before midnight to deny an emergency appeal from abortion providers and others that sought to block enforcement of the law.
This won’t be the last word on the subject. The Texas law is still under challenge in the lower courts, and the Supreme Court may be asked to take it up at a later date. Justices could decide to uphold Roe v. Wade again, but in the meantime, women in Texas will be forced to travel great distances to access abortions in other states or carry unwanted pregnancies to term.
And many poor women won’t even have that choice if they can’t afford an airplane ticket or a long road-trip. This was the situation that existed in America before Roe, and it was unjust and dangerous then. The Texas law is such a clear violation of the rights articulated in Roe that it should have been prevented from taking effect as the challenges move through the courts.
The law outlaws abortion after a fetal heartbeat can be detected – usually about six weeks into the pregnancy, before many women even know that they are pregnant.
This is not the first “heartbeat law” but it has a unique enforcement mechanism designed to make it difficult to challenge in court.
Health care providers and anyone who “aids and abets” a woman seeking what it defines as an illegal abortion are subject to lawsuits that can be filed by any individual or nongovernmental group. Fines for violators start at $10,000, and it’s the person who filed the suit and not the government that gets the money.
This is a unique structure and it creates unique problems for those who want to challenge it. It may take time before a viable case appears. Meanwhile women in Texas are already seeing their rights limited.
Anti-abortion groups have created tip lines to collect names of providers and others who could be dragged into court. Abortion clinics are closing their doors and doctors are telling patients that they cannot take the risk of offering them treatment.
If this works in Texas, it will work in other states that have already passed “heartbeat laws” but have seen them blocked in the courts because they clearly violated the precedent of Roe v. Wade. The fact that the Supreme Court let the Texas law go into effect while the legal process is underway shows that a majority of justices are willing to ignore the precedent, at least temporarily.
That’s a far cry from the testimony we heard during the confirmation hearings of the three recent Republican appointees to the court, Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, who all, to some extent, described their reverence for precedent, especially the longstanding ones that have become intertwined with people’s lives.
But less than a year after Barrett joined the court, we know two things: Women, just because they happen to live in Texas, will be denied a constitutional right, and a majority on the U.S. Supreme Court thinks that’s OK.
There will be more to say on this topic, but for now, the divided court says a great deal.
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