The Sweeping Texas Abortion Ban That Took Effect Today Is Plainly Inconsistent With SCOTUS Precedents
Because the Supreme Court has not intervened yet, a Texas law that purports to ban the vast majority of abortions in that state took effect today. S.B. 8, which Gov. Greg Abbott signed into law on May 19, requires physicians to check for cardiac activity with a sonogram prior to an abortion, and it says “a physician may not knowingly perform or induce an abortion” if he detects “a fetal heartbeat.” In an effort to frustrate constitutional challenges, the law bars state or local officials from enforcing the ban, instead authorizing “any person” to sue physicians who perform post-heartbeat abortions, along with anyone who “knowingly engages in conduct that aids or abets” such procedures.
Last week, U.S. District Judge Robert Pitman nevertheless declined to dismiss a July 13 lawsuit challenging S.B. 8. In that case, Whole Woman’s Health v. Jackson, abortion providers and abortion rights advocates sued a Smith County judge, the clerk of that court, state medical regulators, Texas Attorney General Ken Paxton, and Mark Lee Dickson, a pro-life activist who “has expressed his intent to bring civil enforcement actions as a private citizen under S.B. 8.” The plaintiffs argued that the defendants would all play a role in enforcing the statute, either by bringing the lawsuits it authorizes, adjudicating them, taking administrative action against medical professionals accused of violating S.B. 8, or pursuing civil penalties under the Texas Medical Practice Act triggered by the new abortion restrictions.
Pitman agreed with that logic, and he scheduled a hearing for August 30 to consider a preliminary injunction. On Friday, after the defendants appealed Pitman’s decision, he vacated that hearing with respect to the state defendants, who claim sovereign immunity, but not with respect to Dickson, a private citizen. That same day, the U.S. Court of Appeals for the 5th Circuit imposed a “temporary administrative stay” on the district court proceedings, and on Sunday it rejected the plaintiffs’ motion to lift that stay, along with their motion for an emergency injunction.
The next day, the plaintiffs asked the Supreme Court to intervene by issuing an emergency injunction or by lifting the 5th Circuit’s stay. Because the Court has not responded yet, there was nothing to stop S.B. 8 from taking effect today.
The law’s reach is so broad that it clearly violates the Court’s abortion precedents. According to the Court’s 1992 decision in Planned Parenthood v. Casey, the government may not impose an “undue burden” on the right to abortion, which happens when its regulations have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” A fetal heartbeat can be detected beginning around six weeks into a pregnancy, long before “viability,” before most abortions are performed, and before many women even realize they are pregnant. The plaintiffs estimated that S.B. 8 would affect “at least 85% of Texas abortion patients.”
The law makes an exception for “a medical emergency” but not for pregnancies resulting from rape or incest. Nor does it allow post-heartbeat abortions when the fetus has a “defect incompatible with life after birth.” In those respects, S.B. 8 is even stricter than some state “trigger” laws—aborti
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