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A Brief Analysis of the Challenges Facing Abortion Rights Under Texas Senate Bill 8
Texas Senate Bill 8, put into effect last Wednesday, September 1, places wide restrictions on women's right to abortions in the State of Texas. Under the Act, women are not legally allowed to obtain abortions after cardiac activity can be detected in the embryo, a milestone that is typically reached about six weeks after conception. Unlike most laws, which are enforced through criminal charges, the Act's provisions are enforced through civil lawsuits — lawsuits between two citizens — in which the plaintiff can claim damages from the defendant — anyone who participates or intends to participate in an abortion. While anti-abortion advocates have characterized the Act's passage as the "protection of life," it is a definite blow to women's constitutional rights. The famous Supreme Court ruling on Roe V. Wade establishes that the Constitution protects a woman's right to an unrestricted abortion in the first trimester — or three months — of pregnancy. This interpretation is largely based on the 14th Amendment to the Constitution, which requires states to respect people's constitutional implied right to privacy.
While Senate Bill 8 clearly contradicts Roe, the Supreme Court declined to temporarily suspend enforcement of the Act. The Court's majority opinion argues that the conditions for suspending enforcement of the Act's provisions have not clearly been met because while the Court can stop certain people from enforcing laws, it cannot temporarily suspend the law itself, and the only citizen who testified before the Court affirmed he has no current plan to enforce the Act.
Regardless, the Justice Department, under President Biden, has sued Texas in Federal Court in an attempt to overturn the Act through judicial review. The precedent for the lawsuit comes primarily from two things — Roe's abortion protections, and the Supremacy Clause. Because the Supremacy Clause states that the Constitution "shall be the supreme Law of the Land", and because Roe's affirmation of the constitutional right to obtain an abortion is in direct conflict with the state law created by Senate Bill 8, Roe takes precedence over Senate Bill 8. The lawsuit characterizes the Act's enforcement mechanism as "[deputization of] ordinary citizens to serve as bounty hunters" and explains that it "assigns enforcement authority to private individuals... as a means of evading lawsuits challenging [the Act's] constitutionality".
Whether or not the lawsuit succeeds remains to be seen. Conservative Justices hold a supermajority in the Supreme Court, and some, especially Justice Brett Kavanaugh, have expressed a desire to re-examine the abortion rights afforded through Roe. While Democrats in Congress are pushing to codify abortion protections in statutory law, they would likely be challenged in court if Roe and other abortion protections are struck down.
Analysis Questions
How is federalism influencing the Justice Department’s active involvement in the affairs of the State of Texas? Under the Constitution, should they be getting involved?
Why can the Supreme Court amend constitutional rights to an abortion?
Interesting Links:
DOJ Lawsuit:
https://www.justice.gov/opa/press-release/file/1431596/download
Overview of SB8:
https://www.texasmonthly.com/news-politics/texas-abortion-law-explained/
Supreme Court Opinion:
2 comments:
Federalism has lead to the federal government trying to overturn the law in Texas as they argue that since the supreme court had ruled that abortions for woman are a part of their rights. Texas therefore has violated the constitution. This is a clear example of the federal system in action as differing levels of the government are passing laws that contradict one another and they work to try to sort out their differences or enforce their policy regardless of the other's thoughts. As for the supreme court and their ability to amend constitutional rights I think is just a part of their job and duty to actively change with the cultural changes. While I understand that the point of the Supreme court is to be all about justice and not change based on popular though I do think they should be allowed to change their minds on occasion and get with the times. For example I doubt anyone today would stand by the Plessy v. Ferguson ruling. I think our view and what we consider justice and equality changes constantly as a society so I think the supreme court should also have that ability of change though albeit to a lesser degree.
Because Congresspeople struggle to find common ground in an increasingly polarized political climate, Americans have found informal ways to amend the Constitution, specifically through judicial review. Judicial review, which allows the Supreme Court to interpret the constitutionality of legislation, means that nine — not always impartial — justices decide for the fate of millions. As the majority of current Supreme Court justices are conservative, judicial review is an inherently biased and informal way of amending the Constitution.
The new Texas law, the most restrictive in the nation, represents a sea change in the battle over abortion rights, and invites imitation by other states. If the Supreme Court reviews either Dobbs v. Jackson Women’s Health Organization (Mississippi's fifteenth week abortion ban) or FDA v. ACOG (FDA rule which subjects patients to unnecessary COVID-19 risks when they receive abortion medication) in its fall term, which starts in October, Roe v. Wade could be overturned. Should that happen, the resulting outcry would surely be deafening.
Ironically, the legislation became law in a state where personal freedom is widely touted: the right to bear arms, to protect property, to shun COVID-19 vaccines and masks during the deadliest pandemic in more than 100 years. The backlash, predictably, was swift and shrill.
Critics say the law, which makes no exceptions for rape or incest, strays from the rightful function of government by attempting to legislate morality. According to the Pew Research Center, 40 percent of Americans support outlawing or severely restricting abortion — a sizeable, vocal minority. The emotionally-charged issue aligns heavily with religious views.
Asked if rape victims would be legally required to carry a pregnancy to term, Gov. Abbott assured women that he would “eliminate all rapists from the streets of Texas….” The state recorded more than 18,000 rapes in 2019. According to a University of Texas study, more than 90 percent of the crimes go unreported each year.
The recent discussion over abortion legislation has called into question how far the government can encroach on the freedoms of individuals — as women’s rights are under siege again, this time over a heart-wrenching decision men will never have to make for themselves: whether to terminate a pregnancy.
- https://www.aclu.org/cases/american-college-obstetricians-and-gynecologists-v-us-food-and-drug-administration
- https://www.npr.org/2021/09/08/1035089278/texas-governor-defends-abortion-law-saying-state-will-eliminate-all-rapists
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