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The Texas abortion law stands

But challenges are still to come


The Supreme Court Building in Washington, D.C. Associated Press/Photo by J. Scott Applewhite, File

The Texas abortion law stands
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The Supreme Court ruled last Friday that abortions in Texas remain unlawful after around six weeks. At least for now, the law is in effect even as challenges in the federal courts are allowed. Predictably, pro-abortion forces are extremely frustrated.

Enacted on Sept. 1, the controversial Texas statute authorizes ordinary citizens to file suit against abortion providers. Those providers immediately filed suit arguing that the Texas law is unconstitutional under Roe v. Wade. On Friday, the Supreme Court rejected most of the arguments made by the abortion clinics and allowed the Texas heartbeat law to remain in effect—but it also permitted the lawsuit to continue. This means that the future of the heartbeat law remains uncertain, making clear the necessity of a high court decision overruling Roe.

In their briefs and at oral argument, the abortion clinics argued that the Texas heartbeat law is unconstitutional under Roe and later Supreme Court decisions. They claimed that, under those decisions, a state may not protect unborn life until a baby is able to survive outside her mother’s womb—around 22 weeks’ gestational age. As a result, counsel for the abortion providers argued that the Supreme Court should restrain state court judges, or at least county clerks, from enforcing the law.

For its part, Texas argued that the structure of the state’s law meant that the abortion clinics had raised its claims in the wrong court. Because the Texas heartbeat law leaves enforcement to private citizens, and not state officials, Texas argued that federal courts were without authority to issue any injunction.

In its decision on Friday, the Supreme Court left the Texas heartbeat law in effect. It agreed in part with Texas finding that the lawsuit filed by the abortion clinic must be dismissed as to most of the defendants, but the Court also held that the lawsuit could go forward against certain state medical licensing officials.

So, what happens next? The abortion providers’ lawsuit against the Texas heartbeat law will continue in federal district court against the state medical board officials. Because federal courts are bound to apply the prior decisions of higher courts, the district court may find the Texas law suspect under the Supreme Court’s current abortion decisions. The district court, however, will only have the authority to enjoin the medical board, which controls licensing, and not individual Texas citizens, who may still file suit to enforce Texas’s limitation of abortions after around six weeks. This prospect of individual suit may well keep the abortion industry at bay—at least temporarily.

Underlying all of the procedural arguments made before the Supreme Court in Whole Women’s Health v. Texas, is the reality of Roe v. Wade. Until that decision is reversed, states will be severely limited in their ability to protect life, no matter how strong their interest in protecting unborn life or women’s health. The creativeness of the Texas law shows the lengths to which states are currently required to go in their attempts to protect the sanctity of life.

On the same day that the Supreme Court allowed the Texas law to remain in effect, it dismissed a second case brought against the law by the Biden administration’s Department of Justice. The DOJ argued that it should be able to sue Texas over the law because it has a general “interest” in “maintaining the supremacy of federal law.” But our constitutional commitment to federalism does not allow the U.S. government to veto state legislation.

The battles will continue—at least until Roe is reversed.

It is perhaps telling that Justice Gorsuch’s opinion for the Court in Whole Women’s Health v. Texas noted that the pro-abortion advocates lawsuits “face serious challenges.” Indeed, the most serious challenge to the abortion industry is currently pending before the Supreme Court. In defending its law, Mississippi argues that the Supreme Court must overrule Roe and subsequent abortion cases which preclude the states from protecting life. The Court’s ruling in Whole Women’s Health gives reason to hope—and to pray.


Erin Hawley

Erin Hawley is a wife, mom of three, senior counsel at Alliance Defending Freedom, and a law professor at Regent University School of Law.


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