Texas Senate Bill 8, AKA “The Heartbeat Act,” has withstood the possibility of challenge in federal court once again. The act is one of the most restrictive anti-abortion laws in the country. It bars the procedure after the detection of a fetal heartbeat, typically around six weeks into the pregnancy, with exceptions for medical emergencies. Challenges to the law have been ongoing in the six months since the law went into effect. SB 8 was intentionally designed to withstand challenges in court by relying on private citizens to sue those who aid the abortion process. This includes the abortion provider, but also those who give financial support to abortion seekers or drive people to abortion clinics. Abortion recipient themselves cannot be sued. The minimum payment for a successful suit is $10,000 and any citizen can sue, even if they have no connection to the abortion recipient.
The lack of a clear state involvement in administration of the law has foiled challengers seeking to overturn it. Abortion was declared a fundamental constitutional right in the Supreme Court case Roe v. Wade (1973), protected specifically by the due process clause of the Fourteenth Amendment. However, the due process clause precisely reads “nor shall any State [emphasis added] deprive any person of life, liberty, or property without due process of law.” There is technically no state enforcement in SB 8, so the law has been able to escape constitutional challenges thus far. The Supreme Court heard arguments against SB 8 last November. They declined to overturn it, holding that because no state officials administered the law the state was not legally liable. The Court left one possible exception open, stating that the Texas Medical Board might be implicated in the administration of the law. The Fifth Circuit Court of Appeals considered the question, and asked the Texas Supreme Court if medical licensing officials could enforce the law. The Texas Court ruled that although licensors were normally involved in disciplining medical providers who breach abortion restrictions, they had no authority in matters concerning SB 8.
The Texas bill has inspired a suite of similar legislation in several states. On March 23, Idaho governor Brad Little signed into law an abortion bill that banned the procedure after six weeks, with exceptions for rape and incest. Like the Texas law, it empowers civilians to obstruct abortions by suing providers (but restricts those who can file to would-be family members of the fetus). The Oklahoma House of Representatives also recently passed a bill that would ban abortion at conception using the same private enforcement mechanism.
The spread of bills modeled on the Texas legislation comes at a time when the nation is awaiting a critical Supreme Court decision. In December 2021 the Court heard arguments for Dobbs v. Jackson, a case concerning a Mississippi law that would ban abortion after 15 weeks. If the law is upheld by the Court, the decision would create new precedent, overturning the Roe holding that abortion is a fundamental right. The decision will be released by the end of the Court’s term in late June or early July.