In May, Texas Governor Greg Abbott signed into law S.B. 8, a radical piece of legislation that effectively bans abortion after just six weeks, with no exemptions given for rape or incest. The Supreme Court narrowly voted in a 5-4 decision to formally state that the bill may go into effect on the intended date of Sept. 1. The structure of this anti-abortion bill is not only a radical departure from the legal precedence for abortion rights in the United States, but it is also a stunningly sinister shift in how laws governing the constitutional rights of U.S. citizens are enforced. The Supreme Court was unambiguously wrong not to block this piece of legislation in consideration of both reproductive rights and the precedent set on infringing on other constitutional rights.
On the principle of reproductive rights, S.B. 8 is problematic from both a scientific and social justice perspective. The bill functions to ban abortion, in theory, after the “heartbeat” of an embryo can be detected. Right off the bat, there are two glaring issues with this prohibition that are immediately apparent. First, “fetal heartbeat” is a disingenuous term that is hardly ever used in clinical settings. A heartbeat is never detectable at just six weeks, because there isn’t even a heart at this point in fetal development. What Texas lawmakers are describing in S.B. 8 could better be described as “a group of cells with electrical activity.” This medical reality is a far cry from the mental image of a baby with a beating heart conjured up by anti-abortion rhetoric.
Second, in most cases, it is very difficult to even know that a pregnancy has begun by just six weeks. Since it usually is not possible to pinpoint the date of conception, healthcare providers usually just determine the date to be the first day of the pregnant person’s last menstrual period. It is usually already four and a half to five weeks from the first day of the last menstrual period to the time when someone usually considers their menstrual cycle to be late. It is functionally impossible to recognize that one is pregnant, decide to get an abortion, make an appointment at a clinic (assuming the pregnant person has access to money, health insurance, transportation, time off from work, and a clinic nearby), and complete the procedure when working within a two-week time frame at best.
Additionally, this optimistic two-week time frame requires assuming that the pregnant person menstruates regularly. A late or missed period can be caused by a wide range of factors that don’t involve pregnancy—using certain forms of contraception, heavy exercise, and even stress can all cause a menstrual cycle to come late or not at all. This reality that many other factors could delay a person’s menstrual cycle serves as another major barrier to abortion access—many people don’t even know that they are pregnant by the six-week cutoff. The unrealistic nature of this time frame is evidenced by the fact that at least 85 percent of all abortions in Texas occur after this six-week mark. It is important to acknowledge that this narrow time frame is a feature of the bill rather than a byproduct—Texas lawmakers are not ignorant of these scientific realities. It is the intention of Texas legislators to completely ban abortion without exactly admitting it outright.
More generally, what S.B. 8 means for this new era of constitutional uncertainty is sobering, not just for people who have benefitted and will benefit from abortion. S.B. 8 was designed in a way that intentionally complicates the ability of the courts to review the constitutionality of the law. In most bills that pass through state legislatures nationwide, people who object to the law are able to challenge it in court by suing the person or entity charged with enforcing the law—this could be a state Board of Education or state medical board, for example. In the language of the Texas abortion bill, however, it is ordinary citizens who are tasked with enforcing the penalties for carrying out or assisting an abortion procedure. Under S.B. 8, any person who performs or “abets” an abortion, or even reasonably “should have known” an abortion was taking place, is open to lawsuits from any private citizen. This opens up abortion providers to a barrage of lawsuits, but also friends, family members, ride-sharing drivers who bring a person to an abortion, and even people who share information with a pregnant person about their options. To add insult to injury, the burden of proof is on the person being sued, not the person bringing the lawsuit, which completely perverts the “preponderance of evidence” doctrine typical of the U.S. legal system. The requirement that the defendant prove that they didn’t break the law, rather than the plaintiff having to prove that they did, makes it much more likely that plaintiffs will succeed and gain their payout as a reward for turning on their neighbors. Each successful lawsuit carries a $10,000 minimum payout. These factors, taken together, create a strong incentive for neighbors to turn on each other.
The law’s enforcement mechanism is dystopian—not just because it encourages active surveillance of pregnant people and everyone who interacts with them, but also because of the amorphous nature of enforcement by private citizens. This leaves pro-choice Texans with no recourse to sue to block this bill, because there is no enforcement entity that exists. In refusing to block this shameless exploitation of a loophole in order to circumvent judicial review, the Supreme Court has implicitly endorsed this tactic, sending a signal to other states that they can get around constitutionality by simply devolving enforcement to private citizens. This poses a dangerous risk to other constitutional rights, not just abortion, because it frustrates the ability of judicial review to check the constitutionality of legislation. For example, a state could make it illegal to criticize the governor, as long as dissenting opinions are reported in lawsuits brought by people’s neighbors rather than the government. In the conservative Supreme Court’s excitement to effectively ban abortion, they overturned years of precedent, and potentially put civil and political rights as a whole in danger.
Featured Graphic by Olivia Charbonneau/ Heights Editor