Heartbeats at the Supreme Court

Pro-life and pro-abortion activists alike are proclaiming as a blow to Roe v. Wade the U.S. Supreme Court’s denial late Wednesday night of abortion groups’ challenge to a Texas abortion law. Although it’s a major victory for pro-lifers in Texas, the Supreme Court majority opinion leaves the door open for future court disputes over the Texas law’s constitutionality.

The “heartbeat” law that went into effect Wednesday protects from abortion unborn babies with a detectable heartbeat. Abortion providers say this could prevent as many as 85 percent of otherwise possible abortions in the state. But unlike heartbeat laws in other states, this one relies on private citizens rather than state officials for enforcement: Any citizen who has evidence of someone performing an abortion or helping a woman obtain an abortion has the right to sue individuals performing the abortion.

Abortion groups in other states have blocked other heartbeat laws by suing the state governments. But they thus far have failed to find a successful legal strategy against a law that uses private citizens instead of the state to enforce the measure.

In a statement, Students for Life President Kristan Hawkins called the Supreme Court decision “baby steps toward the obvious conclusion that aborting babies by the millions is not a Constitutional ‘right.’”

But Texas Right to Life legislative director John Seago urged more caution. He acknowledged the ruling was the “most significant victory that the pro-life movement in Texas has accomplished since Roe v. Wade.” But: “When looking at the specifics, this is not against Roe itself. They’re not admitting any erroneous precedent that’s been adopted in Roe. They’re not clarifying any mistakes of the past. So you don’t want to overstate that this undermines Roe.”

The plaintiffs in the lawsuit, including abortion providers Whole Woman’s Health and Planned Parenthood, appealed to the Supreme Court after the 5th U.S. Circuit Court of Appeals on Friday halted proceedings in the case, even canceling a hearing scheduled for Aug. 30.

“This order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” reads the brief order from the Supreme Court’s conservative majority. As Chief Justice John Roberts highlighted in his dissent, the court can take up that question “when that question is properly presented.”

The court’s main issue with the emergency appeal was procedural. The majority found that the plaintiffs had not proven they’re likely to win the case because of the unlikelihood of the defendants named actually being a threat to the suing pro-abortion groups. The majority of those defendants are state employees: the executive directors of the state medical, nursing, and pharmacy boards; the head of the state Health and Human Services Commission; and the state attorney general. But Texas’ heartbeat law does not direct any government employees to make sure abortion providers comply. “All of these individuals are actually prohibited from making sure the abortion industry complies with this law,” Seago said.

Referring to two more of the defendants, a district court judge and a district clerk, the Supreme Court also noted that it wasn’t clear if the justices had the power to issue an injunction against judges who could be ruling on lawsuits in the state.

The only private individual listed as a defendant is Mark Lee Dickson, a Texas pro-life activist known for promoting city ordinances meant to effectively outlaw abortion within a given jurisdiction. As the high court noted, he already signed an affidavit promising he has no present intention to enforce the law.

Seago says that the justices’ refusal to block the law shows a shift in the court away from judicial activism, breaking a “pattern of the court ignoring its constitutional limit and going out of their way to rule in favor of abortion.”

To help private citizens enforce the law, Texas Right to Life last month unveiled a website on which people can submit anonymous tips about suspicious activity that could defy the pro-life law. Frustrated abortion advocates have spammed the website with bogus tips and ridiculous photos. So far no legitimate tips have come in through the website.

But Seago said it’s shown the state’s abortion providers that pro-lifers are serious about enforcing this law. “Civil liability is only as strong as the belief that someone will bring a suit,” he said. In response, Planned Parenthood has reportedly already stopped scheduling abortions past 6 weeks of gestation.

After years of attempting to pass a law that will actually protect unborn babies from abortion, the success of Texas’ heartbeat law is a relief to the pro-life movement. Rather than relying on often Democratic, Planned Parenthood‒endorsed state attorneys, said Seago, the ability to put enforcement into the hands of private citizens “really puts a new legal tool on the table for the movement” and gives them “a better role to protect innocent human life like the Legislature intended with these pro-life laws.”