WASHINGTON — Since 2013, more than a dozen states have tried to ban abortion as soon as a sonogram can pick up the thump-thump of an embryonic heartbeat.
That’s about six weeks, an egregious constitutional affront under Roe vs. Wade. No court has allowed a ban so early in pregnancy to stand.
The Supreme Court never even granted an appeal — until Texas concocted Senate Bill 8.
What grabbed the Supreme Court's attention, prompting two hours of oral arguments scheduled Monday, isn’t the six-week ban, which clearly violates Roe, but the way the law outsources enforcement to legal bounty hunters in an effort to evade judicial review.
A ruling could come quickly, and it will focus on whether Texas achieved its goal of crafting a law immune from challenge by anyone, including the federal government and abortion providers.
That’s an important question, as other red states consider copycat laws. But it means SB 8 won’t be the vehicle the conservative majority uses to toss Roe on the scrap heap with Dred Scott and other landmarks the court came to regret.
The fact they let SB 8 take effect on Sept. 1 is a strong omen that Roe’s days could be numbered, though.
“Pro-life advocates are energized and excited. The court has declined every opportunity to block SB 8,” said Kyleen Wright, president of Texans for Life Coalition. “That just gives everyone more hope and anticipation of what they’re planning to do with Dobbs.”
The court will hear arguments Dec. 1 in Dobbs vs. Jackson Women’s Health Organization, involving a 15-week ban in Mississippi intended as a test case that might topple Roe.
“We may get some tea leaves from (Monday’s) argument, but I would be very surprised if there were major changes that come directly out of it,” said I. Glenn Cohen, deputy dean of Harvard Law School and an expert on medical ethics and the law. “If there is going to be a big change in abortion law itself, i.e., what the Constitution prohibits states from doing, that’s likely to come at least initially in Dobbs.”
Under Roe, the state’s interest in protecting the fetus outweighs a woman’s right to bodily autonomy once the fetus could survive outside the womb. That’s about 22 to 24 weeks.
For decades, courts have enforced Roe by stopping prosecutors and police from enforcing certain restrictions.
Under SB 8, there’s no official to enjoin.
The self-preservation mechanisms built into SB 8 are so complete that doctors aren’t even allowed to defend themselves against lawsuits by pointing out that the six-week ban is unconstitutional.
Even the most ardent anti-abortion activists were dubious as the bill worked through the Legislature.
“We had concerns that SB 8 would not survive a federal court challenge even back during the spring,” said Joe Pojman, executive director of Texas Alliance for Life, who said he privately urged key Texas lawmakers to think twice.
Roe is a “terrible precedent” that “ties the hands of the Legislature from protecting unborn babies before the point of viability,” Pojman said, but it is, unequivocally, the law of the land unless the Supreme Court says otherwise.
That’s exactly why the court needs to strike down SB 8, say the Justice Department and abortion providers who’ll plead the case Monday.
Texas’ solicitor general, Judd Stone, will defend the law before the court, along with a lawyer for a group of private citizens who want to file lawsuits under SB 8.
The Biden administration’s solicitor general Elizabeth Prelogar, confirmed by the Senate only on Thursday, will argue the case for the Justice Department.
A pro-life activist holds up a baby doll during a rally for a ban on abortion in front of the U.S. Supreme Court on Oct. 12, 2021, before oral arguments in Cameron v. EMW Women’s Surgical Center, a case revolving around a Kentucky effort to ban of a surgical procedure commonly used in the second trimester.
In 2020, Texas residents terminated 55,175 pregnancies. That’s 20,000 more than in 1974, the first full year after Roe, and about half the annual peak in the early 1980s.
From Jan. 1 through the end of May — the most recent official data available — the state counted 24,667 abortions in Texas, a somewhat higher annual pace.
The vast majority of those, 82%, were performed in the first eight weeks, and a study released Friday suggested that the number of abortions has been cut in half under SB 8.
Texas keeps detailed data on abortions and a picture emerges of the average patient.
She’s most likely in her late 20s, almost certainly unwed, a bit more likely to be Latino than white or Black.
She probably has a child already; 60% of abortion patients have given birth at least once.
She just realized she was pregnant. Six weeks into a pregnancy is just two weeks after a missed period — if this woman happens to have a regular cycle, which many don’t.
North Dakota became the first state to adopt a fetal heartbeat law in 2013. A dozen states followed suit.
The only such statute to take effect is SB 8, which includes this definition: “‘Fetal heartbeat’ means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.”
In literal terms, there won’t be a heartbeat for months beyond the point at which these measures outlaw abortion.
“The term `fetal heart-beat’ is misleading and divorced from the latest medical science when used to describe embryonic cardiac activity at early gestation,” the American College of Obstetricians and Gynecologists explained to the justices ahead of Monday’s hearing in a friend of the court brief.
Dr. Nisha Verma, a fellow with the ob/gyn group, put it in layman’s terms.
“A heartbeat is the sound created by the opening and closing of cardiac valves,” she said. “What people think of as a heartbeat in early pregnancy is actually created by electric impulses. … There are no cardiac valves. … Those electric impulses do not make the sound of a heartbeat on their own.”
More to the point, she said, the sound produced by these electrical impulses thrills parents-to-be, but it’s far from a marker of viability and it “is not a particularly important part of fetal cardiac development.”
Two rulings set the contours of abortion rights and regulations.
In 1973, the court struck down a Texas ban challenged by a Dallas woman known in court as Jane Roe, later identified as Norma McCorvey, who had sued Henry Wade, the longtime Dallas district attorney.
“It started here and it ends here is something that we like to say, especially in the Dallas area,” said Wright, head of Texans for Life Coalition.
In 1992, a bitterly divided court reaffirmed Roe in Planned Parenthood vs. Casey.
But the court also used Casey to provide guidance to states, allowing restrictions that don’t impose an “undue burden,” defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
Applying that test, the court let stand Pennsylvania’s 24-hour waiting period, and parental consent for minors, but struck down a requirement that married women notify their husbands before they could terminate a pregnancy.
States got the message and many began to test the limits of Casey.
In 2003, Texas passed the “Women’s Right to Know Act,” requiring pre-abortion counseling that includes information designed to discourage patients from going through with it, then a 24-hour waiting period.
Women who live within 100 miles of the provider must get the counseling in person. Starting at 16 weeks, abortions must be performed in an ambulatory surgical center; none of the 54 abortion clinics in Texas met the standard when the law took effect.
In 2005, Texas banned abortions after 24 weeks and began to require parental consent for anyone under 18 seeking an abortion.
In 2011, Texas began to require a sonogram at least 24 hours before an abortion. Doctors are required to show the image, make the fetal heartbeat audible, and give a verbal explanation of the results.
In 2013, Texas adopted House Bill 2, after a dramatic filibuster by Democrat Wendy Davis, then a state senator from Fort Worth, that quashed an earlier version. Abortion after 20 weeks was banned, with exceptions to save the woman’s life or in case of severe medical problem with the fetus.
In 2016, the Supreme Court invoked Casey when it struck down two new Texas restrictions in Whole Woman’s Health vs. Hellerstedt, a challenge from the same abortion provider challenging SB 8. The law at issue required clinics to meet the standards of ambulatory surgical centers, and doctors to have admitting privileges at a hospital within 30 miles.
In 2017, Texas banned the most common procedure for second-trimester abortions. A court blocked that as an undue burden.
In 2019, Texas made it a crime to withhold medical treatment from a fetus born alive — a scenario doctors say doesn’t and can’t occur, because of the 20-week ban.
Until the Trump era, there was no question the court would reject a 15-week ban like Mississippi’s.
But with a 6-3 conservative majority now a year old, the judicial landscape has never been more favorable for those attacking Roe.
It takes four of nine justices to grant a hearing. It’s unclear if there’s a fifth willing to overturn Roe.
“I’ve been involved in the pro-life movement for 34 years and my hopes have been dashed several times,” said Pojman. “But this time I truly am hopeful that Roe could be substantially modified or overturned.”
Abortion rights advocates are pinning their hopes on Chief Justice John Roberts.
Appointed by Republican George W. Bush, Roberts has disappointed conservatives by regularly choosing precedent over ideology when those come into conflict.
On Sept. 1, when the five other conservatives allowed SB 8 to take effect, Roberts dissented.
The law is so “unprecedented” that it would be wiser to freeze enforcement “so that the courts may consider whether a state can avoid responsibility for its laws in such a manner,” he wrote.
Two of the three joined the chief justice’s dissent.
Justice Sonia Sotomayor, writing separately, chastised Texas lawmakers for showing such disregard for precedent and judicial review.
“To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not,” she wrote. “… In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”
Texas’ argument is that there’s no one for anyone to sue to block the law, and the federal government can’t claim standing just because it believes private parties would suffer.
The Justice Department’s response: “Having chosen an unprecedented scheme in a deliberate effort to thwart ordinary judicial review, Texas should not be heard to complain when the federal courts exercise remedial authorities that are usually unnecessary.”
Rulings in the Texas cases could come quickly, maybe even within hours.
The Supreme Court could overturn SB 8 outright, or kick it back to lower courts with guidance on how to sort it out.
As for Dobbs, like most big cases the ruling will probably come in late June at the end of the court’s term.
When the dust settles, Texas and other red states could be free to ban virtually all abortions, because if a majority of justices are inclined to overturn Roe, they might very well go all the way, advocates and legal experts say.
“Any point before birth, other than fertilization, is arbitrary,” Pojman said.
Texas is one of a dozen states, mostly in the South, with laws on the books to ban abortion entirely if and when Roe falls: House Bill 1280, which makes no exception for rape or incest. Doctors would face life in prison or $100,000 fines for violating the ban.
Abbott signed it in June, though public support for such a complete ban is low.
Only 13% of Texans polled early this year by the Texas Politics Project at the University of Texas said they want abortion outlawed. Only 21% of Republicans said abortion should never be permitted.
But, said James Henson, director of the UT project, “A Draconian abortion law has a lot of value in a Republican primary, however much ambivalence there may be in a general election.”
