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Supreme Court allows restrictive Texas abortion law to take effect


Shutterstock | Di HENADZI KlLENT

John Burger - published on 09/01/21

Senate Bill 8 forbids abortion if fetal heartbeat is detected. "A victory for us," says Right to Life group.

A Texas law forbidding abortions after a fetal heartbeat has been detected went into effect Wednesday, after the United States Supreme Court failed to respond to requests to block it.

It is the most restrictive abortion law in the nation.

Senate Bill 8 forbids abortions if a heartbeat is detected, a phenomenon that occurs before many women realize they are pregnant. The law has no exceptions for rape or incest, but does allow abortions in case of medical emergencies.

In an emergency application to the Supreme Court, Texas abortion providers wrote that the law “would immediately and catastrophically reduce abortion access in Texas, barring care for at least 85% of Texas abortion patients (those who are six weeks pregnant or greater) and likely forcing many abortion clinics ultimately to close.”

The New York Times’ Adam Liptak explained that the law was drafted to make it difficult to challenge in court. “Usually, a lawsuit seeking to block a law because it is unconstitutional would name state officials as defendants,” Liptak wrote. “But the Texas law bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or ‘aids and abets’ it.” He continued:

The patient may not be sued, but doctors, staff members at clinics, counselors, people who help pay for the procedure, even an Uber driver taking a patient to an abortion clinic are all potential defendants. Plaintiffs, who need not have any connection to the matter or show any injury from it, are entitled to $10,000 and their legal fees recovered if they win. Prevailing defendants are not entitled to legal fees.

The immediate question for the justices is not whether the Texas law is constitutional. It is, rather, whether it may be challenged in federal court. The law’s defenders say that, given the way the law is structured, only Texas courts can rule on the matter and only in the context of suits against abortion providers for violating the law.

Wednesday’s news won’t be the last word on the issue, though. Justice Samuel A. Alito Jr., who oversees the federal appeals court in this case, might yet issue a decision or refer the case to the full court.

“We’re not fully celebrating until we officially hear from Alito,” John Seago, legislative director for Texas Right to Life, told the Times. “The motion is still pending. He has to do something with it. He can’t just ignore it. 

“But in the meantime it seems like the industry is going to comply and that’s definitely a victory for us,” Seago said.

“Today, the State of Texas is implementing a creative new policy that recognizes the child in the womb as a member of the human family and protects her from the violence of abortion,” commented Eric Scheidler, Executive Director of Chicago-based Pro-Life Action League. “We encourage the other 49 states to catch up with Texas and continue this historic expansion of human rights.”

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