Texas vs. Abortion? What the Supreme Court’s Ruling Means

The Supreme Court ruled on Friday that the Texas Heartbeat Act may remain in effect for now. The Texas law allows private parties to sue abortion providers who perform abortions after an unborn baby’s heartbeat can be detected. Abortionists are prohibited from recovering legal fees, even if a future court rules that the Texas Heartbeat Act is unconstitutional.

The current position of the U.S. Supreme Court is that the 14th Amendment to the Constitution (which prohibits states from depriving “persons” of “life, liberty, or property, without due process of law”) prevents states from banning abortion or imposing any “undue burden” on the “right” to an abortion before the point of viability. The Supreme Court is already considering this term whether it should overturn its previous decisions protecting abortion before viability. Oral arguments were heard in that case, Dobbs v. Jackson Women’s Health, last week. While a final decision isn’t expected until June, it seems possible, if not likely, that a majority of justices on the Supreme Court are inclined to overturn Roe v. Wade and Planned Parenthood v. Casey. Doing so would return abortion regulation to state legislatures. Until the Court hands down its decision in the Dobbs case in June, lower courts must apply the Supreme Court’s earlier precedents that enshrine abortion before the point of viability as a constitutional right.

In recent years, lower federal courts have quickly imposed injunctions on states that passed pro-life legislation that banned abortion or had the effect of banning abortion before the point of viability. Injunctions prevent state officials from enforcing a law even before a court reaches a decision on the substance of the underlying case. Injunctions may be granted if judges believe that the state law is likely to have violated the Supreme Court’s interpretation of the Constitution and if parties seeking an injunction can show that they will suffer real harm to the exercise of their constitutional rights in the absence of an injunction.

Mississippi’s 15-week abortion ban that the Supreme Court is considering in Dobbs is currently under an injunction from a federal court and cannot be enforced unless the Supreme Court rules in its favor. South Carolina recently passed a heartbeat bill that bans abortion after a heartbeat can be detected, though this law was almost immediately stopped by an injunction. These laws are helpful to the prolife cause since they force the federal courts to reconsider the issue, and they give the Supreme Court an opportunity to overturn Roe v. Wade and Planned Parenthood v. Casey. If the Court does overturn Roe this summer, already existing pro-life laws in many states will be triggered or activated, restricting abortion. Texas has its own so-called trigger law that would ban abortion 30 days after the Supreme Court overturns Roe and Casey.

While many states will be able to act swiftly against abortion if Roe is overturned this summer, it was thought before the Texas Heartbeat Act that there is little that could be done to stop abortion between now and then. The Texas Heartbeat Act fills in this gap by allowing private parties to bring lawsuits against abortion providers. If it falls to private parties rather than state officials to enforce the law, the Bill’s sponsors reasoned, a court cannot issue an injunction to stop the act from being enforced. In order for the law to be stopped, a case would have to work its way through the Court system, buying time for unborn children in Texas. According to the Texas abortion providers, the heartbeat law has dramatically reduced the number of abortions currently performed in Texas.

Abortion clinics and the Biden administration brought suits to immediately stop the enforcement of the Heartbeat Act. They sued the Texas attorney general, though it is not clear how the Texas attorney general would have any power to enforce or refuse to enforce the Heartbeat Act. They also brought suit against judicial clerks who perform the filing of lawsuits as an administrative task for the courts. They even sued a private party who might file a lawsuit under the Heartbeat Act. These lawsuits ask the courts to stop these officials from carrying out the Texas Heartbeat Act. Last month, the U.S. Supreme Court refused to grant an emergency injunction to stop these officials from carrying out their duties, but also decided to consider whether they would allow an argument for an injunction against certain persons to proceed in the lower federal courts.

Friday, the Supreme Court issued its ruling that the vast majority of these suits seeking injunctions against the Texas law cannot continue. Since the Texas attorney general and judicial clerks do not actually enforce the Heartbeat Act, the Court ruled that the federal courts cannot issue injunctions to stop them from carrying out any of their duties. The Supreme Court did make an exception for some state health officials. State health officials are tasked with certifying medical care providers and ensuring their compliance with all state laws. One of the state laws in the section with which state officials need to ensure compliance is the Texas Heartbeat Act. On that account, a lawsuit is allowed to proceed in federal court asking the federal courts to stop state health officials from carrying out their duties in line with the law.

Even if Texas health officials were to be immediately forbidden from enforcing the Texas Heartbeat Act in their compliance and certification decisions for medical professionals, it seems unlikely that this will have any substantial immediate effect on private parties in Texas who would still be able to sue under the Texas Heartbeat Act. The threat of private lawsuits against abortion providers remains, and it will hopefully disincentivize abortionists in Texas from performing many abortions. It seems unlikely that a federal or state case on the merits will be able to work its way through the judicial system much more quickly than the Supreme Court’s eventual decision in the Mississippi case this June. In the meantime, many lives will be saved in Texas. With the Supreme Court weighing the merits of overturning Roe, the Texas Heartbeat Act continues to give the pro-life movement a chance to show the world that it is possible to build a world that is hospitable to vulnerable women and babies without a license to kill the unborn.

Kevin Vance

Kevin Vance is the director of the Center for Constitutional Liberty at Benedictine College in Atchison, Kansas. He received a PhD in political science from the University of Notre Dame.