How the Texas’s abortion bounty legislation has cornered the Supreme Court into a narrow 5-4 judgement, leaving the world on its edge as to the fate of Roe v Wade.
By Cherie Tse (BA/LLB II)
What is the Bill?
Senate Bill 8, otherwise known as the ‘Texas Heartbeat Act’, went into effect on the 1st of September 2021. This newly passed Texan abortion law offers a bounty of $10,000 USD to anyone suing clinics, doctors, nurses, abortion providers and other residents who knowingly or intends to ‘aid or abet’ the performance or inducement of an abortion.
Fetal heartbeat
The Bill provides that ‘a physician may not knowingly perform or induce an abortion... if the physician detect(s) a fetal heartbeat’, defining a ‘fetal heartbeat’ as a ‘cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestation sac’ as defined in Section 171.201(1) of the Texan Health and Safety Code § 171.201. Despite the fact it takes four weeks for a woman to miss the first day of her regular menstrual period (not to mention some women have cycles that last longer), the law bans abortions as early as six or more weeks into a pregnancy. Indeed, doctors have asserted that at such an early stage, the ‘fetal heartbeat’ detected by ultrasounds which the Bill refers to are merely electronic impulse ‘flutters’ induced by the embryo rather than fetal heartbeats. Moreover, at 6 weeks an embryo is not viable which, per Colautti v Franklin, [1] means it is not reasonably likely the fetus can survive outside the womb with or without artificial support—this typically takes 24 weeks. This is clearly inconsistent with the legal precedent set by Roe v Wade, which stated ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability’.
So how did the state of Texas manage to enact a Bill which clearly violates the rights of women?
Significance
What differentiates Senate Bill 8 from previous abortion-related legislation is that the law provides an incentive to sue other fellow Texans, rather than public officials. Cleverly designed to avoid judicial review or constitutional challenges, the Bill presents itself as a positive authorization of private civil rights of action. This is as the law enables everyday citizens to become unofficial “bounty hunters”, directly encourages private citizens to bring civil actions against each other in return for (1) an injunction relief, (2) statutory damages in an amount of not less than $10,000 for each abortion the defendant performed, induced, aided or abetted and (3) costs and attorney’s fees. While the woman herself cannot be sued, her aiders risk a hefty fine if a civil suit is brought against them. This potentially includes the uber/taxi driver who brought her to the clinic, or someone ‘paying for or reimbursing the cost of an abortion through insurance or otherwise’[2].
With such an enticing reward, why wouldn’t you throw in a tip about your neighbour next door who drove a pregnant woman to Planned Parenthood? Even if the defendant wins the dispute, the plaintiff is not required to cover their legal fees.
Contradiction to past legislation
Opposers have argued that this law directly contravenes the protections granted by Roe v Wade, as well as those specified in Planned Parenthood of Se. Pa v Casey and Jackson Women’s Health Org v. Dobbs. Nevertheless, the Justices have allowed Texas to enforce the law, claiming their rulings were based on procedural issues rather than the issue of whether it was constitutional. The majority affirmed that the order was not to resolve ‘definitively any jurisdictional or substantive claim in the applicant’s lawsuit’, but rather were concluded based on the procedural issue of imposing an injunction. Essentially, the Court did not overturn Roe v Wade but did not confirm whether the precedent would be overturned in the coming years.
What next?
The Supreme Court’s ruling has not gone unnoticed. Both the judgement and Senate Bill 8 have been heavily criticized by feminists, pro-choice activists and twitter fanatics. The Bill has caused pregnant women in Texas to seek abortions from other nearby states. Unsurprisingly, the Bill has also forced abortion clinics across Texas to close. More recently, the Department of Justice under the plaintiff’s name of ‘USA’ has filed a claim for declaratory and injunction relief against the State of Texas for enacting a statute that contravenes the constitution. Whether USA—or any other party asserting Senate Bill 8 is unconstitutional—will succeed ultimately hinges on how the Supreme Court deals with the Bill’s novel strategy of making civilians anti-abortion “bounty hunters”. Will the GOP majority decide along party lines, or will there be surprising swing judgements? Only time will tell.
[1] 439 U.S. 379, 388 (1979),
[2]Texas Senate Bill 8