The Texas Heartbeat Act

Heritage Explains

The Texas Heartbeat Act

Is Roe v. Wade over?

Is Roe v. Wade over? How does this new law in Texas work exactly? What did the Supreme Court say about this law? Our guest, Sarah Perry, a legal fellow in Heritage’s Meese Center, explains.

Michelle Cordero: From The Heritage Foundation, I'm Michelle Cordero. And this is Heritage Explains. On September 1st in the state of Texas, a law went into effect banning most abortions after six weeks of pregnancy, when an ultrasound can pick up the sound of a fetal heartbeat.

Cordero: The bill that brought about this law, the Texas Heartbeat Act was co-authored by 11 pro-life women's state legislators, debated by all 181 members of the Texas legislature, and signed into law by the Texas governor. Polls actually showed that 46%, almost half of female voters in Texas were behind this bill. There is every indication here that the Texas legislature acted on the will of the people to protect unborn children and mothers. But predictably, the left is not taking it well. Companies like GoDaddy, Uber, Lyft, Bumble, and Match are promising to cover legal funds or creating relief funds for employees who want an abortion. And here's White House senior advisor, Cedric Richmond.

Cedric Raymond: We're going to do everything we can to try to remedy that situation for people in Texas. It is just a cruel and destructive law on the rights of women.

Cordero: And MSNBC's Rachel Maddow.

Rachel Maddow: Republican senators like Susan Collins and Lisa Murkowski said they weren't quite sure they were convinced that all these Trump nominees to the Supreme Court certainly recognized Roe vs. Wade as settled precedent. They would never mess with that. Let's not be melodramatic. Legal abortion is safe in this country in a permanent way. Well, here we are. If you ever wondered where you'd be and what you'd be doing and what it would be like for you when Roe versus Wade came to an end in America and abortion started to be banned in America, well, wherever you were today and whatever you were doing today and whatever it was like for you today, that's your answer.

Cordero: So is Rachel right? Is Roe really over? How does this law work exactly? What did the justices say about this law? Our guest is Sarah Perry, a legal fellow in Heritage's Meese Center. And today she explains.

>>> Texas Heartbeat Law Is Now in Effect. Here’s What You Need to Know.

Sarah Perry: Thanks for having me.

Cordero: Okay. So let's take this at a really 101 level. What exactly does this law do?

Perry: This law bans any abortion that occurs in the state of Texas after six weeks, which is generally when the science tells us that a fetal heartbeat can be detected. Now, the state of Texas has tried previous heartbeat laws in the past. None of whom have survived when they've been questioned in federal court. But by reversing some of the enforcement techniques for this particular law and giving citizens like you and me the opportunity to actually bring enforcement actions, they actually were able to survive the Supreme Court's analysis of whether or not the law could stand.

Cordero: Can you explain to our listeners who don't know much about heartbeat laws, why was this able to stand? Doesn't that have to do with a person who's pressing charges?

Perry: Here, it's the abortion providers. That is what they tried to do was to get even before the law went into effect the Supreme Court to say, listen, this is unconstitutional according to what we've set out in Roe vs. Wade and Planned Parenthood versus Casey. But the problem was they couldn't get over the procedural hurdle. And the way the law was written was only private citizens can bring enforcement actions. In other words, if a private citizen like you or me finds out that an individual is doing abortions after the six week mark in Texas, in violation of the law, you can bring an action. And if found civilly liable, not criminal, this isn't a criminal statute, but it found civilly liable, that individual can be fined $10,000. And the one bringing the suit can recover attorney's fees.

Perry: The motive behind this is to make it expensive for abortionists to keep doing their work in Texas. So by the time it got to the Supreme Court, the Supreme Court said you haven't met your procedural burden. These two individuals, one of whom has signed the affidavit, another of whom is a state actor who can't enforce it the way the law's written obviously are not doing you any imminent harm. So you haven't shown us not only that we need to get involved on an emergency basis because nothing's pending here, but you also haven't proven to us that you were in the right position to assert a constitutional defense.

Perry: Now, for that to work, these individuals would have to wait until they would actually be sued for an enforcement of this Texas heartbeat law. So a citizen would find out they were doing these illegal abortions. They would bring a civil action. And then an abortionist could raise as an affirmative defense a violation of Roe vs. Wade saying, well, the law itself is unconstitutional. So the action needs to be dismissed. It's actually quite an ingenious way to write a piece of legislation.

Cordero: Yeah. And I think that I'm guilty of this myself and getting caught up in the procedure. It makes me want to ask the questions like, well, who exactly can file a complaint? How many people could? Doesn't that create a problem? There's just so many questions that I have about this procedure. But I think, like I said, that we're all getting caught up on that. And the left is caught up on that and the media, but what is it that you think people should know about this moment, other than the procedure?

Perry: You know what? That is a great question. I will say that the Supreme court very clearly said, and this was a 5-4 decision, four separate descents. The liberal justices plus Chief Justice Robert, who we're learning more and more is a moderate as opposed to a conservative. And then the five conservative justices. In their opinion, the conservative justices said very clearly, we're making no determinations as to the constitutionality of the heartbeat law. We are just saying simply that these abortionists have not met their procedural burdens.

Perry: And so among other scholars, I had a good laugh on Twitter because they said much to the chagrin of leftists, the conservative majority followed the law. Whether that's the law on abortion, whether that's the law on what it means to be a biological woman under Title IV, or whether or not that's the law on what's tantamount to a recognition of standing and legal injury sufficient to bring a case. And they said, you didn't get over that initial hurdle. So we haven't considered any claim relative to Roe vs. Wade. And in fact, we've heard so much in social media about how Roe vs. Wade was "gutted." In fact, Sonia Sotomayor said that it was a shocking decision, that the conservative justices had stuck their heads in the sand, that it was a dark day for women's rights, but nothing of the kind happened.

Cordero: Yeah. So this could be a victory, even though it's a victory for life. And even though it's a victory for conservatives, this really could be much ado about nothing.

Perry: Well said. And in fact, what Governor Abbott and the entire state legislature's aim was, was I believe to not only make expensive the whole procedure of abortion, because this is truly a multi-billion dollar industry, but also the fact that they knew there was a much bigger Supreme Court case looming in Dobbs versus Jackson Whole Women's Health.

Cordero: Next question for you. A lot depends on what happens in the upcoming Dobbs versus Jackson's Women Health Organization. How do we compare these two? What should we be looking for?

Perry: Well, a critical distinction here is the fact that this emergency petition coming out of Texas was very different from what we're going to be seeing in the Supreme Court for oral arguments probably now in November. That's what we're hearing the scuttlebutt is that the arguments will be coming up in November and that we'll get a decision May or June of next year.

Perry: So they have before them a substantial question coming out of Mississippi. And that's on that Mississippi's Gestational Age Act. So again, state legislatures passing their own laws, being signed by their own governors, each taking a different tactic to try to protect unborn lives. Mississippi's bill bans abortions after 15 weeks. Now, why 15 weeks? Well, because it very squarely put in front of the court the question of why did you choose a viability as the standard in Planned Parenthood versus Casey?

Perry: Now, back in Roe, we know that it was divided into trimesters. When Justice Blackman wrote the decision, they sort of randomly picked this privacy interest is correlating with first, second, and third trimesters, a higher desire for privacy when a woman isn't demonstratively pregnant in the first trimester and the lesser interest in privacy when she is obviously showing pregnant in the third trimester. Well, they changed that in Planned Parenthood versus Casey in 1992 and said, well, now we're going to say viability's the standard. That's around 24 weeks, except that the science hasn't quite kept pace.

Perry: It has superseded these decisions on fetal viability. What we know now is completely advanced. It is a different world based on what-

Cordero: Sonograms.

Perry: Absolutely, sonograms, fetal heart rates, neural developments, when they feel pain, response to outside stimuli. So at 15 weeks, we know a baby is highly developed and yet they are just on the cusp of second trimester, but all of their neural functions, their physiological development is in place.

Perry: At that point, all they're doing is getting bigger. So Mississippi's goal was to say, look, you have everything that a human needs here. We are obviously representing the protection of life. Simply because we've picked a different week doesn't mean that these are any less human. So for the first time in Dobbs, in November, the court has been to hear arguments about why they picked that viability standard. Again, out of thin air, number one.

Perry: And number two, if it's before viability, are those restrictions unconstitutional based on what the Supreme Court has said in the past. That's a case that will deal specifically with the merits of the question of abortion and how and whether it fits into the constitution. What's coming out of Texas was strictly a procedural decision, but it will be impacted in what the court ultimately decides in Dobbs After we hear oral arguments.

Cordero: So basically, we just got a little sneak preview of how upset the left is going to be as this starts to go down?

Perry: Yes, this is one state and only on a procedural outcome, but it makes it inconvenient for a woman to get an abortion after six weeks in the state of Texas. And what Texas was doing and I applaud them is putting a halt to abortions for the most part, until the Supreme Court issued its ruling in Dobbs. They are forced to let that stand.

Perry: Now, could they ultimately hear a claim of unconstitutionality on the Texas heartbeat law? Yes. And I'll tell you how that could happen. If someone, a private citizen brings an enforcement action, let's say against Planned Parenthood of Dallas and they decide they're going to go through with it, they would raise as an affirmative defense the lack of constitutionality. The fact that the heartbeat law was unconstitutional. Now, if that goes through the appeal process and winds its way through the federal courts, we might get before Dobbs comes out a determination as to whether or not it's constitutional, but based on how the federal courts work, the timing and what we know the Supreme Court is already going to be considering, I think it's fairly unlikely.

Cordero: Sarah, I had other questions for you, but you just answered all of them. That was a great explainer on the issue. And as Dobbs versus Jackson comes up, I hope that we can have you back and break it down further again.

Perry: Great. I'd love to be back. Thanks for having me.

Cordero: That's it for today's episode. I'd love to hear your thoughts about today's topic. Do you feel our Supreme Court could overturn Roe? Are we at that place? Send me an email at [email protected]. Thanks for listening. And we'll see you next week.

Heritage Explains is brought to you by more than half a million members of The Heritage Foundation. It is produced by Michelle Cordero and Tim Doescher, with editing by John Popp.