Supreme Court does not stop Texas law from banning abortions after 6 weeks of pregnancy
The Supreme Court declined to halt a Texas law banning abortions in the state after 6 weeks of pregnancy in a 5-4 decision late on Sept. 1, according to multiple media outlets.
The law, SB 8, prohibits doctors from performing an abortion if they detect a fetal heartbeat unless there is a medical emergency.
However, the law does not provide for state enforcement of the ban. It instead allows private citizens to sue anyone who helps a woman have an abortion after a fetal heartbeat has been detected for up to $10,000.
Gov. Greg Abbott signed the law in May, and it went into effect after midnight along with more than 600 other laws in the state on Wednesday.
“The 87th Legislative Session was a monumental success, and many of the laws going into effect today will ensure a safer, freer, healthier and more prosperous Texas,” Abbott said in a press release.
The lead plaintiff in the case, Whole Woman’s Health, operates four clinics in Texas. It said in a statement that it will continue to provide abortion services within the law’s restrictions.
“Whole Woman’s Health believes that abortion is a moral and social good. We know that access to abortion makes communities safer and healthier,” Whole Woman’s Health president and CEO Amy Hagstrom Miller said in a statement.
In its ruling, the Court said the applicants “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.”
The Court further said that its “order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
Chief Justice John Roberts and justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.
“The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime,” Roberts wrote in his dissent, adding that more time is necessary to consider the complex issues regarding the case.
Breyer said the law will prompt abortion clinics to shut their doors, rather than face the risk of such lawsuits, closing off services to “more than half of the women” seeking them.
“The very bringing into effect of Texas’s law may well threaten the applicants with imminent and serious harm,” Breyer said in his dissent.
Citing previous cases, Sotomayor called the law unconstitutional.
“Taken together, the Act is a breathtaking act of defiance — of the Constitution, of this Court’s precedents and of the rights of women seeking abortions throughout Texas,” Sotomayor said in her dissent.
References:
Office of the Texas Governor Greg Abbott. Over 600 new laws go into effect today in state of Texas. https://gov.texas.gov/news/post/over-600-new-laws-go-into-effect-today-in-state-of-texas. Accessed September 2, 2021.
Supreme Court of the United States. Whole Woman’s Health, et al v. Austin Reeve Jackson, Judge, et al. https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf. Accessed September 2, 2021.
Whole Woman’s Health. Amy Hagstrom Miller SB8 press statement. https://www.wholewomanshealth.com/amy-hagstrom-miller-sb8-press-statement/. Accessed September 2, 2021.
Perspective
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The OB/GYN community has been talking of little else for the past few days, and we are of course concerned over the impact of this decision on our patients.
I am old enough to remember life before Roe v. Wade. One of my mother's good friends had a sister (from when I was growing up in the ’60s) who had an illegal abortion, became septic and died. One of my friends from college had gotten pregnant during freshman week — she started college in 1967, and it was estimated that up to 10% of freshman women got pregnant during freshman week. She had an illegal abortion, became infected and was never able to conceive a child after she had gotten married, although she was really trying to get pregnant. These are real issues that I saw.
I did a subinternship in obstetrics and gynecology in Barbados in 1974, where abortion was still illegal. We used to admit about one patient every day with a septic incomplete abortion. There was an estimated 4,000 live births on the island annually and about 4,000 illegal abortions. So, as many experts have commented, making abortion illegal doesn't stop abortions — it just makes women seek illegal abortions, which are not done by competent physicians, and as a result women can get infected, become sterile or die.
No gynecologist likes doing abortions, I assure you. But until contraception becomes perfect (which it alas is not) or human beings stop being human beings (like forgetting to take a birth control pill daily, or not using a condom in the heat of passion), or when rape becomes a crime of the past (which it never will), or when young adolescents stop discovering their sexuality, we need to have accessibility to abortions.
And many women do not know they are pregnant at 4 weeks since conception. About a third of women have bleeding during the first trimester of pregnancy — half will go on to carry the pregnancy, and half will miscarry. But many women will see that bleeding and assume it is a period and will not think they are pregnant. So, these women will not be even aware that they are pregnant by 6 weeks from their last menstrual period.
Most gynecologists would really like for our patients' sake to keep abortions safe, legal and rare. To outlaw abortions is detrimental to all aspects of women's health.
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Whole Woman’s Health et al v Austin Reeve Jackson, Judge, et al.
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