Supreme Court Silent on Texas Abortion Law: Is the End in Sight for Roe v. Wade?

By Kelsey Weinman.

On May 19, 2021, Texas Governor Greg Abbott signed into law Senate Bill 8 (S.B. 8), also known as the Texas Heartbeat Act. SB 8 effectively bans abortion in Texas as it prevents abortions after about six weeks of pregnancy, often before a woman even knows she is pregnant. The current Supreme Court precedent, Roe v. Wade and Planned Parenthood v. Casey, holds that women have a constitutional right to pre-viability abortions. On September 1, 2021, the Supreme Court signaled that it may be prepared to overturn Roe and Casey by letting S.B. 8 go into effect.

How did we get here? 

In 1973, the Supreme Court decided the seminal abortion case Roe v. Wade. In Roe, the Court held that a state could not regulate abortion in the first trimester. States could, however, impose regulations reasonably related to maternal health in the second trimester, and regulate or prohibit third trimester abortions. In Doe v. Bolton, a sister abortion case decided the same day as Roe, the court clarified that states could not prohibit post-viability abortions when medically necessary to preserve the mother’s life or health.

In 1992, the Court once again took up the issue of abortion in Planned Parenthood v. Casey and revised the standard set out in Roe. The new standard laid out in Casey did away with the trimester framework and instead held that state abortion regulations could not impose an “undue burden” on a woman’s ability to obtain an abortion pre-viability. The Court defined “undue burden” as “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Still, the fundamental principle of Roe remained intact—a state could not prohibit abortions prior to viability.

Since Casey, a number of states have passed laws to try and limit abortions. In 2016, the Court struck down a Texas law that sought to restrict the function of abortion clinics by requiring that physicians performing abortions have admitting privileges at a hospital within 30 miles of the abortion facility, and that clinics comply with standards for ambulatory surgical centers. Had this law been upheld, only about seven or eight abortion facilities would have been able to remain open—not enough to meet demand. The Court found that the burden on women seeking abortions outweighed any potential medical benefits of the new requirements. In 2020, the Court struck down a similar Louisiana law for the same reasons.

With the appointment of Justice Amy Coney Barrett, replacing the late Justice Ruth Bader Ginsburg, anti-abortion rights advocates were ready to test the temperature of the now-strengthened Supreme Court conservative majority. 

What is S.B. 8?

S.B. 8 is a law crafted by the Texas legislature that effectively bans abortions after about six weeks of pregnancy. While the law contains exemptions for medical emergencies, it does not exempt rape or incest. The law is one of the strictest abortion bans in the country. S.B. 8 differs from other abortion bans due to its unique enforcement mechanism. Under this law, private citizens have the ability to sue abortion providers, along with anyone else who aids a woman in obtaining an illegal abortion; this could include an Uber driver taking a woman to her appointment. The law is one-sided. If the plaintiff prevails, they are entitled to a minimum of $10,000 in damages plus attorneys’ fees. But if the defendant prevails, they are barred from recovering attorneys’ fees. 

Before the law went into effect, abortion providers in Texas sued all state trial court judges and county clerks who have jurisdiction to hear suits brought under S.B. 8, specifically suing one district court judge and his clerk as representatives for their respective classes. A federal District Court judge rejected a motion to dismiss the case and scheduled a hearing on whether to block the law. The Court of Appeals for the Fifth Circuit, however, canceled the hearing. Subsequently, the plaintiffs sought emergency relief with the U.S. Supreme Court, but the Court declined to act. In a 5-4 decision, the Court allowed the law to go into effect. 

What comes next?

The first test of S.B. 8 is officially underway. Dr. Alan Braid, an abortion provider from San Antonio, wrote an op-ed in the Washington Post stating that he violated the law hoping to provoke a legal challenge. Dr. Braid is now facing at least two lawsuits: one from a disbarred former lawyer from Arkansas, currently under house arrest for tax evasion, who says he is hoping to collect money from the suit, and a second from a Chicago man who describes himself as “pro-choice” and is using the complaint to try to invalidate the law.   

Meanwhile, the Supreme Court has taken up another case challenging Roe. On September 20, 2021, the Court set the date for oral arguments in Dobbs v. Jackson Women’s Health Organization, a case out of Mississippi challenging a law banning most abortions after 15 weeks, well before viability.

What might this mean for Arizona?

The Arizona legislature has shown a willingness to pass abortion restrictions. The legislature recently passed an abortion bill, signed into law by Governor Ducey on April 27, 2021, that “makes it a felony for a medical professional to terminate a pregnancy solely on the basis of a hereditary abnormality in the fetus.” The bill does not apply to cases of genetic conditions lethal to the fetus.

Anti-abortion rights advocates are looking to push for a law similar to S.B. 8. Cathi Herrod, the president of the Center for Arizona Policy, stated that S.B. 8 “is a road map to what other states can do” and is “worthy of serious consideration by the Arizona Legislature.” On the other side, Planned Parenthood of Arizona’s spokeswoman Murphy Bannerman voiced concerns about the ruling and pointed out that the recently passed genetic abnormality law has elements of civil enforcement similar to those in S.B. 8. The Arizona law allows the husband of a woman who has an abortion due to genetic abnormality to file a civil suit on behalf of the unborn child.

Additionally, abortion rights advocates should not count on Governor Ducey to veto any abortion laws similar to S.B. 8, should they be passed, as the governor “has signed every abortion restriction that has reached his desk.”

Conclusion

While Roe v. Wade is still valid law, it is effectively dead in Texas and could be overturned in the upcoming Supreme Court term as the court considers the Dobbs case out of Mississippi. There is no guarantee that the Arizona legislature will act to restrict abortion should the Texas or Mississippi laws be upheld, but based on its recent activity, pro-choice advocates certainly have reason to be concerned.

"Pro-Abortion Rally" by American Life League is licensed under CC BY-NC 2.0

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By Kelsey Weinman

J.D. Candidate 2023

Kelsey is a 2L Staff Writer for the Arizona State Law Journal. Kelsey graduated from the Rochester Institute of Technology in 2017 with a Bachelor of Science degree in game design and development, and prior to law school spent three years working as a software engineer in the defense industry. She is active with the intellectual property student association and plans to practice intellectual property law.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.