Conservatives Should Worry About the Texas Abortion Law Too
In Roe v. Wade (1973), the U.S. Supreme Court held that a woman may have an abortion for any reason during the first three months of pregnancy. During the next three months, up to the point of fetal “viability,” the state may only enact abortion regulations that are “reasonably related to maternal health.” During the final trimester of pregnancy, Roe said, a state may regulate “and even proscribe” abortion, except when “the preservation of the life or health of the mother” is at stake. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court both upheld Roe‘s core recognition of a woman’s right to have an abortion and introduced a new standard of review in abortion cases. According to Casey, it is unconstitutional for a state to enact a pre-viability regulation for “the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” That, the Court held, would “impose an undue burden on the right.”
Senate Bill 8, the Texas anti-abortion law that went into effect this week, is unconstitutional under these precedents. The Texas law bans all abortions, with no exception even in cases of rape or incest, after the sixth week of pregnancy, which is not only before the point of fetal viability but also before most women even know that they are pregnant. If the Roe/Casey precedents are enforced against this restriction in federal court, the Texas law will be struck down.
The law’s authors know this so they tried to do an end run around the federal courts. Normally, when a state regulates or bans a particular activity—be
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