Technicality That Enabled the Texas Abortion Ban May Trip it Up Before U.S. Supreme Court

The Women's March in Houston in October.
The Women's March in Houston in October. Photo by Violeta Alvarez

It is more than a little ironic that the technical loophole the Texas conservative officials used to shut down the federally-guaranteed right to abortion in our state may be upended by another technicality.

And by conservative justices on the U.S. Supreme Court, no less.

Monday, the Supreme Court heard arguments in two cases opposing the Texas abortion law, known as SB8. The suit brought by the Biden administration didn’t seem to be making much headway, but the one filed by the abortion providers may have a chance to – if not ultimately cancel the Texas so-called “heart-beat bill” — to at least give it another review by lower courts.

Under the Texas law in effect since September 1, woman cannot get an abortion once fetal cardiac activity is detected. This usually occurs around six weeks and as has been often stated, is before most women know they are pregnant. There are no exceptions in the case of rape or incest. Ending an ectopic pregnancy — where a fertilized egg grows outside the uterus and its continuance is a danger to the life of a mother — even that seems to be up for debate.

The other difference in the Texas law is that instead of making it the responsibility of the courts to decide and act upon any violations, it has turned detection and enforcement over to the civil arena, offering anyone the chance to file suit against anyone (doctors, nurses, Uber drivers) who in any way assists a woman in terminating her pregnancy. The reward can be $10,000 bounty payments made to these private citizens.

Faced with the prospect of devastating fines, most all clinics in the state shut down abortion operations, forcing women who still wanted the procedure to travel to other states.

The Texas technicality which some welcome as ingenious while others find abhorrent, is what may trip up the whole scheme. Because in essence it removes from judicial review a constitutionally guaranteed right. And that may be a sticking point for conservative justices Brett Kavanaugh and Amy Coney Barnett, who were part of the earlier Supreme Court decision not to intervene in the Texas abortion case.

If allowed to stand, the Texas law removes power from the courts. And judges tend as a group to not embrace that prospect. Kavanaugh questioned whether the same approach could be sought by a state to circumvent Second Amendment rights to bear arms. Could this also apply to First Amendment rights, religious freedom?

A finding in favor of Texas abortion providers doesn’t mean an end to the abortion ban. This case is not pivoting on abortion itself but on whether the power of the courts – especially involving constitutional issues – can be set aside in this way.

If the justices find for the abortion providers, that they can, in fact, sue in cases like this, then the case reverts to the district court level where it may or may not proceed back up the judicial chain.

All of which may be rendered moot by the upcoming case from Mississippi, Dobbs vs. Jackson Women’s Health Organization, which asks the courts – not private citizens acting as bounty hunters – to support its attempted ban on all abortions after 15 weeks. Passed in 2018, the state law has been blocked by a federal appellate court.

The court’s willingness to hear the Mississippi case on December 1 indicates the possibility of in a significant narrowing of the abortion protections as set out in Roe v. Wade. If Roe v. Wade ends up overturned in its entirety, then 12 states including Texas have trigger laws in place that will immediately can abortions in the first and second trimesters.

In which case, any victory in Monday’s appeal by Texas abortion providers will be negated and a footnote to history at best.
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Margaret Downing is the editor-in-chief who oversees the Houston Press newsroom and its online publication. She frequently writes on a wide range of subjects.
Contact: Margaret Downing