A recent decision at the U.S. Supreme Court means that the Texas Heartbeat Act, SB8, which protects unborn children with beating hearts after roughly six weeks gestation, will remain in effect. The court ruled that an abortion provider’s legal challenge to the law can proceed—but only against a few limited parties.
Critically, the Court avoided the merits question—whether SB8 itself was unconstitutional. Roe v. Wade and its progeny protect the largely unfettered right to an abortion until and unless the court decides such a right does not, in fact, emanate from the Constitution and overturns the landmark case. It has an opportunity to do so in Dobbs v. Jackson Woman’s Health.
Which is why, though the abortion providers will indeed have their day challenging SB8 in court, the Whole Woman’s Health decision is itself a victory—however slim—for policies that protect life.
The Texas Heartbeat Law’s unique enforcement mechanism empowers the general public to enforce the policy rather than state officials. The focus of the court’s opinion was almost exclusively on which state officials could enforce the Texas law and therefore be sued in court.
The justices announced that among a group of respondents, including a state court clerk, a state court judge and the Texas attorney general, petitioners Whole Woman’s Health could continue with a pre-enforcement challenge and seek an injunction only against the state medical licensing officials. In a related suit by the Biden administration, the court dismissed the challenge to the law and declined to halt the law’s operation.
However, whether this decision will provide palpable relief to the abortion providers on remand when the law itself relies on enforcement by the public remains to be seen.
On remand, abortion providers are expected to bring another lawsuit. That suit will be relegated to the Fifth Circuit U.S. Court of Appeals, a court that originally ruled in favor of Texas and denied Whole Woman’s Health’s request for relief. No doubt, that decision will be appealed, and the court of final jurisdiction—the Supreme Court—may by that time have determined that abortion is no longer a constitutional right. In such a case, the question of whether a state may permit the general public to enforce a legislative ban on abortion is an altogether different one.
The saga of SB8 is a story nowhere near its conclusion. For those who had worried that citizen enforcement of a constitutional right might inspire copycat laws in blue states where other constitutional rights are disfavored, their fears may prove true. Within 24 hours of the Supreme Court’s decision in Whole Woman’s Health, California Gov. Gavin Newsom announced he would be working with the state’s attorney general to craft legislation modeled after SB8 that targeted gun manufacturers who sell assault weapons or ghost gun kits in the state by way of a similar citizen enforcement mechanism.
Indeed, the sole amicus in the petition for certiorari stage in Whole Woman’s Health v. Jackson was the Firearms Policy Coalition, who sided with petitioner abortion providers and predicted that tyrant governors could use the Texas model to constrain other constitutional rights, including the freedom of speech and the right to keep and bear arms. For its part, the coalition has promised to litigate any such legislation and repeat their earlier victory against California’s unconstitutional ban on so-called “assault weapons” in Miller v. Bonta.
In the meantime, the Texas Heartbeat Act remains operational, despite multiple requests for emergency relief halting it. Abortions in the state decreased 50% after the law went into effect. Since Sept. 1, an estimated 130 abortions per day are no longer taking place in Texas.
This month, the court’s ruling focused exclusively on the mechanism that empowers the general public to enforce the unique Texas law, not the merits of abortion itself. The Dobbs case, argued on Dec. 1, will force the Court to decide the broader issue: Are states policies that protect unborn children from elective abortion before viability constitutional?
If the court says yes and limits or overturns Roe v. Wade, it will correct a grave error. While the nation awaits the court’s ruling in Dobbs, a generation of unborn Texans has been granted reprieve. For the architects of SB8, that was undoubtedly the goal all along.
This piece originally appeared in The Washington Times