Back in May, Governor of Texas Greg Abbot signed into law a bill that banned abortion procedures after six weeks of pregnancy. Last Wednesday, this law went into effect, tying Texas with Mississippi, Georgia and Kentucky for the state with the most restrictive abortion laws in the country. Additionally, the Supreme Court has initially refused to review this “heartbeat bill,” (named due to the fact that a baby’s heartbeat starts around six weeks), which the Court decided in a 5-4 emergency decision. Justice Thomas and Justice Alito, as well as Trump nominees Justice Gorsuch, Justice Kavanaugh and Justice Barrett, made up the majority in this situation.
The Texas law is unique compared to other restrictions in that it allows private citizens to enforce it through lawsuits. Any private citizen is allowed to bring an abortion clinic or doctor to court, and it promises a $10,000 award to any lawsuit that successfully stops an abortion. Many legal scholars have commented that this is an unprecedented situation, and Michael Dorf with NPR condemned it as “the creation of a kind of Stasi or… an East German-type society in which everybody is informing on everybody else.”
One distinction that sets the Texas law apart from other recent abortion laws in states like Georgia and Alabama is that it does not criminalize mothers seeking abortions. The only individuals who may be criminally prosecuted for violations of these laws are those who perform or make it possible for people to have the procedure.
Chief Justice John Roberts, normally a solid judicial conservative, voted in favor of a review of this new law, claiming that the new enforcement techniques were a major part of his decision. The delegation of enforcement authority to the populace allows the state to free itself from any legal responsibility to uphold Roe v. Wade. Roberts said in his dissent that he would like to see the law go through “preliminary judicial consideration before the program devised by the State takes effect.” State-backed vigilantism could be a dangerous (if slightly oxymoronic) precedent to set.
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While the law understandably sparked outrage among pro-choice advocates, many pro-life groups also found issue with the way the restrictions are being enforced. Michael Moreland, a pro-life law professor at Villanova University, claims that “there are all kinds of uncertainties in this statute” in regards to who you are actually allowed to sue. Nina Totenberg of Byline says that the ambiguous terms “could possibly include family members or a receptionist at a clinic or someone who drives a patient to a clinic, even perhaps an out-of-state doctor who via telemedicine prescribes abortion pills.”
The Texas law and Supreme Court response both seem indicative of the growing trend toward a politicized Court. While the original intention of the Court was to be an objective interpreter of the Constitution, the right-left divide seems to be widening in the same way as public opinion. While the Supreme Court has never been a strictly partisan entity, the polarization of the world outside the Courthouse could be starting to seep in and change that. The Court is set to hear a case from Mississippi next term about state laws that ban abortion before viability, a direct challenge to Roe v. Wade. If those laws are upheld, the Supreme Court could functionally overturn that landmark case.