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Explainer: What you should know about the Texas Heartbeat Act and the Supreme Court

Earlier this week, the U.S. Supreme Court was asked by a collection of abortion providers and proponents to intervene to prevent Texas’ Senate Bill 8 (SB 8), or the Texas Heartbeat Act, from taking effect. By not acting, the justices declined to issue an injunction and the law went into effect.

The case known as Whole Woman’s Health v. Jackson came to the Court after a relatively quick series of moves were made by lower courts. The abortion providers initially sued a Texas judge and county court clerk, as well as others, as an attempt to cast a wide net in order to challenge the law. The defendants filed a motion to dismiss, which was denied. The defendants then appealed to the Fifth Circuit Court of Appeals, which has jurisdiction over Texas, Louisiana, and Mississippi. The 5th Circuit granted the appeal and also denied the abortion providers’ request to hold a quick hearing on the law before it could take effect.

It was this decision that caused the abortion clinics to file their emergency application to Justice Samuel Alito, who has the responsibility of managing emergency requests from the state of Texas on the Court. The requests came through what has come to be called the “shadow docket,” which is a procedure for expedited review of emergency proceedings that fall outside of the normal rhythm of oral arguments and decisions many are accustomed to.  

Just before midnight on Sept. 1, the Supreme Court voted 5-4 to officially deny the emergency appeal. Justices Alito, Coney Barrett, Gorsuch, Kavanaugh, and Thomas all voted to deny the appeal.

This case will now return to the lower court, but the law remains in effect.

On Sept. 9, U.S. Attorney General Merrick Garland announced the Department of Justice was filing suit in federal court against the state of Texas over SB 8. The suit seeks a “declaratory judgment that (the law) is invalid under the Supremacy Clause and Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity.” The suit seeks to enjoin the “State of Texas, including its officers, employees, and agents, including private parties” who would bring a suit under SB 8. 

What does the law do?

SB 8 bans abortion once a fetal heartbeat is detected, which typically occurs anywhere between five and eight weeks into a pregnancy. There are no exceptions made for rape or incest, but there is an exemption made for “medical emergencies.”

The Texas Legislature passed SB 8, and Gov. Greg Abbott signed the legislation into law in May. The bill took effect on Sept. 1, 2021. Of note, ERLC trustee Kelly Hancock, a state senator in Texas, was a primary sponsor of this legislation.

What makes this different from other attempts to limit abortion?

A number of states have introduced fetal heartbeat bills, but until now, they have been blocked by the courts. While the Texas Heartbeat Act’s aim is similar to the other heartbeat bills, the enforcement mechanisms are different.

The law takes a novel legal approach to limit abortion by tasking enforcement of the measure “exclusively through private civil actions.” Essentially, the law allows any private citizen to bring a civil lawsuit against any individual who “performs or induces” an abortion, or “knowingly engages in conduct that aids or abets” an abortion, including the payment for or reimbursing the costs for an abortion. Individuals who prevail in their lawsuit will be awarded “statutory damages in an amount of not less than $10,000.”

Rebecca Parma, a senior legislative associate with Texas Right to Life, notes, “No heartbeat law passed by another state has taken this strategy. Additionally, the bill does not punish women who obtain abortions.” 

What does this mean for the Court’s abortion jurisprudence?

The Court recently agreed to hear a challenge to Mississippi’s ban on abortion at 15 weeks in a case entitled Dobbs v. Jackson Women’s Health Organization. However, Mississippi has asked the Court to completely overturn both the Roe v. Wade and Planned Parenthood v. Casey decisions that have protected abortion for the last 50 years. The Court’s decision to not intervene in this instance, where a state law circumvents Roe, could reasonably be seen as an indication the new conservative majority may change direction as it relates to abortion. However, there are still several challenges to SB 8 working their way through the court system that could affect the law.

The ERLC submitted an amicus brief in the Dobbs case stating that the U.S. Constitution “does not create a right to an abortion of an unborn child before viability or at any other stage of pregnancy. An asserted right to abortion has no basis in constitutional text or in American history and tradition.”

How should Christians think about this development?

As we have articulated elsewhere, every committed pro-life Christian wants the immediate end and eradication of abortion. In fact, we want to strive for a culture where abortion is unthinkable and ultimately unnecessary. As laws are introduced and litigated, Christians can and should be on the frontlines of caring for vulnerable women and their preborn babies. We have the opportunity to demonstrate the love of Christ and share the good news of the gospel by tangibly serving women in crisis. 

While we work toward that objective, we should appreciate every step that can be taken –– whether accomplished through legislative channels, court decisions, or cultural developments –– to save one additional preborn life. Until that day arrives, the ERLC will always stand for life in the public square, before the courts, and before Congress.

Brent Leatherwood

Brent Leatherwood currently serves as Acting President of the ERLC, as well as Vice President of External Affairs and Chief of Staff. Before coming to the ERLC, he served as the executive director of the Tennessee Republican Party from December 2012 to December 2016, where he managed the organization’s campaign apparatus at … Read More

Chelsea Patterson Sobolik

Chelsea Patterson Sobolik serves as the Director of Public Policy with the Ethics and Religious Liberty Commission in the Washington, D.C. office. Previously, she worked on Capitol Hill on pro-life policies, domestic and international religious freedom, adoption, and foster care issues. Chelsea has been published at the Wall Street Journal, … Read More

Elizabeth Graham

Elizabeth Graham serves as Vice President of Operations and Life Initiatives for the ERLC.  She is responsible for developing and managing pro life strategies as well as women’s initiatives. She also oversees development, planning and execution of all ERLC events. Elizabeth is a graduate of the University of Tennessee and Southeastern … Read More