Photo by K. Mitch Hodge on Unsplash

The US Supreme Court has declined to hear a challenge to a Texas law which bans abortions after a foetal heartbeat is detected. This has effectively closed abortion clinics in Texas, as a heartbeat can be detected at about six weeks. Women who want abortions will have to travel to neighbouring states.

For abortion supporters this is Armageddon. Planned Parenthood clinics have stopped scheduling abortions beyond six weeks from conception.

Writing in The Guardian, two feminist activists declared: “Since Roe v Wade was decided nearly 50 years ago, abortion opponents have been plotting its demise. Now the end may be near. Feminists need our own plan to advance reproductive freedom. That means preparing for a post-Roe world.”

And worse than post-Roe, worse than post-Apocalyptic, it is un-Texan. As an abortion doctor in north Texas, Ghazaleh Moayedi, told the BBC: “Providing abortion care, and accessing abortion care is actually the very heart of being Texan.”

President Joe Biden denounced the law as “extreme”. He declared that he would launch a “whole-of-government” response to oppose the law – although what that means is uncertain.

For abortion foes, however, this is a sweet victory. At least a dozen other states have passed laws which ban abortions of foetuses early in a pregnancy, but all of them have been stymied by injunctions. “Starting today, every unborn child with a heartbeat will be protected from the ravages of abortion,” Governor Greg Abbott tweeted. “Texas will always defend the right to life.”

Politicians in Arkansas, South Dakota and Florida are said to be considering a version of the Texas six-week abortion ban in their states.

But much of the reaction to the ban is hyperbolic. While Roe v Wade, which made abortion a constitutional right in the US in 1973, is manifestly under threat, the Supreme Court majority took great pains to make clear that their decision was made on procedural grounds and did not touch upon constitutional issues.

The problem for pro-abortion groups in Texas is that the new law has been very cleverly drafted. It does not criminalise abortion or abetting an abortion. Instead, it permits private citizens, even non-residents of Texas, to launch a civil suit. This tactic removes the state government from the complaint and makes it difficult for abortion clinics to create a test case to bring before the Supreme Court. At the same time anyone involved in an abortion is in danger of copping a US$10,000 fine plus substantial legal costs.

So the pro-life legal victory is a temporary one. Litigation will continue in lower courts. A more substantial case has been brought by the state of Mississippi, which will be probably heard later in December with a decision to be handed down next year.

In the meantime, lawyers are fretting about the legal fall-out of this unusual tactic.

“I confess that I have very serious reservations about the Texas legislation,” wrote David French, a pro-life pundit at The Dispatch. “The reason why is simple—it represents a clever way to engineer temporary deprivations of constitutional rights.”

Imagine a different scenario. Let’s imagine that a state or city bans the sale of, say, all semiautomatic rifles or handguns. But instead of enforcing the ban directly, it states that citizens can sue any person or corporation who sells a gun and any person or corporation who aids or abets the sale of a gun. Such a provision would be blatantly unconstitutional, but it may take time to resolve the issue—time that could cost a person the ability to defend themselves from deadly violence.

Even if the creative legislation only blocks abortion in Texas temporarily, the pro-life movement is gathering momentum. As columnist Timothy P. Carney pointed out in the Washington Examiner, “A majority in a recent CBS poll (54%) want abortion to be more restricted than it currently is. That means they want Roe and Casey to be struck down or replaced with a completely different court precedent.”

Michael Cook

Michael Cook is the editor of MercatorNet.