By Stephanie Martin -September 2, 2021
In an unsigned 5-4 ruling late Wednesday, the U.S. Supreme Court voted not to block a Texas abortion law that effectively bans most abortions in the state. The ruling doesn’t address the constitutionality of the law, which represents the tightest restrictions on abortion since the landmark 1973 Roe v. Wade decision.
The Texas law, which Gov. Greg Abbott signed in May, bans abortion after a fetal heartbeat can be detected, usually at about six weeks, before most women even know they’re pregnant. The ban’s unusual enforcement provision, which grants power to civilian whistleblowers, intentionally makes court challenges difficult.
Texas Abortion Law: Pro-Lifers Declare Victory
After the ruling was announced, many pro-life advocates and Christian leaders expressed joy and relief, calling it a major win. “What an amazing victory!” tweeted Abby Johnson, the subject of the anti-abortion movie “Unplanned.” “Babies win! Life wins!” The pro-life organization Live Action calls the ruling “a monumental, encouraging step forward for human rights!”
Outreach Magazine editor-in-chief Ed Stetzer tweets: “Today is a safer day to be an unborn child in Texas” and “It’s time to overturn Roe v Wade. It’s bad law, bad for the unborn, & bad for women. Justice matters.”
Southern Baptist Convention President Ed Litton calls the Supreme Court’s refusal to intervene “such an encouraging development” but warns “the fight for life is by no means finished.” And Southern Baptist theologian Al Mohler describes the ruling as “a milestone in the battle for life” and a “massive” development that has left abortion advocates in “shock.”
With the Supreme Court’s new conservative majority, Wednesday’s ruling is raising hopes—and concerns—that Roe v. Wade is in jeopardy.
How the Justices Ruled on the Texas Abortion Law
All three justices appointed by former President Trump (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) voted in the majority, joined by Clarence Thomas and Samuel Alito. Joining the three liberal dissenters (Stephen Breyer, Elena Kagan, and Sonia Sotomayor) was Chief Justice John Roberts, who says lower courts need more time to determine if “a state can avoid responsibility for its laws” by delegating enforcement to citizens.
The most harshly worded dissent came from Sotomayor, who (along with Breyer) omitted the customary modifier “respectfully” between the words “I dissent.” Calling the Texas abortion law a “breathtaking act of defiance,” Sotomayor accuses the majority of opting to “bury their heads in the sand.” By failing to block the abortion ban, she writes, SCOTUS “rewards tactics designed to avoid judicial review and inflicts significant harm on…women seeking abortions in Texas.”
In her dissent, Justice Kagan emphasizes a woman’s “federal constitutional right to obtain an abortion during that first stage” of pregnancy. But as Mohler points out, that “artificial right” was “invented” through the Roe ruling, and “every single precedent stands until it doesn’t.”
Conservative Justice Clarence Thomas, who labels abortion a means of eugenics, has said Roe was decided incorrectly. But Chief Justice Roberts remains a wildcard. As law professor Steve Vladeck notes, Roberts’ dissent is “a pretty powerful sign that he, at least, is not ready to overrule Roe. But the million-dollar question that [Wednesday’s] 5-4 vote raises is whether, when the time comes, any of the other conservatives will join him.”
Biden Criticizes the Texas Abortion Law, Promises Federal Fight
President Biden, who supports abortion rights despite being a Catholic, pledges to lead a “whole of government” effort against the Texas ban, calling it a “bizarre scheme” with the potential to unleash “unconstitutional chaos.” Regarding its enforcement provisions, Biden says, “Complete strangers will now be empowered to inject themselves in the most private and personal health decisions faced by women.”
In a statement about the Texas abortion law, Biden says, “My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right.” Communities of color and people with low incomes will be particularly affected, the president says, because they don’t often lack resources to travel out of state to obtain an abortion.
Challenging those assertions, Mohler argues that willfully terminating an unborn life isn’t a necessary healthcare service. And raising concerns about race and income is essentially “political signaling,” he adds.
Abortion Access Now Drastically Limited in Texas
As a direct result of the new ban, most abortion providers in Texas have stopped scheduling the procedure for patients who are more than six weeks pregnant. Whole Woman’s Health, which unsuccessfully sued to prevent the law from taking effect, says its four Texas clinics will now provide abortions “only if no embryonic or fetal cardiac activity is detected in the sonogram.”
Planned Parenthood of Greater Texas, which also has stopped scheduling abortions beyond six weeks of pregnancy, tweets: “The conversations happening in health centers in Texas today are devastating.” According to some estimates, 85% of abortions previously performed in the state now won’t occur.
As news broke of the Supreme Court’s ruling, the hashtag #TexasTaliban started trending, as did comparisons to the oppressive society depicted in the TV show “The Handmaid’s Tale.” Beto O’Rourke, a former Democratic presidential candidate, tweeted: “The Texas abortion law is an attempt to legalize harassment. It is as cowardly as it is unconstitutional.”
Whistleblowing Component Under Fire
Texas lawmakers intentionally crafted the abortion ban to make court challenges difficult. Typically, challenges involve suing the government official charged with enforcement. But Texas places enforcement powers with citizens, including those with no vested interest in a particular individual’s effort to seek an abortion. As a result, anyone who helps finance the procedure or drives someone to a clinic may be liable. Informants who sue successfully can be awarded at least $10,000.
Although a dozen other states had passed early-pregnancy abortion bans, courts had blocked them all. In a statement praising the Texas ban, the Pro-Life Action League encourages “the other 49 states to catch up with Texas and continue this historic expansion of human rights.”
On social media, Ed Stetzer offers this reminder: “The US has some of the most extreme abortion laws in the world, aligned w/ only 6 other nations,” including North Korea and China. He links to a Washington Post fact-check report, confirming that America is one of only seven countries that permit elective abortions after the 20-week pregnancy mark.