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The Supreme Court is gearing up to take it down.
By Isaac Serna-Diez — Written on Nov 02, 2021
A little bit of good news for those who have opposed Senate Bill 8 since its inception earlier this year
The bill, which went into effect September 1st, allowed Texans and citizens of other states to turn people involved in an abortion procedure after 6 weeks of pregnancy into the police and retrieve a $10,000 “bounty.”
After the bill went into effect, the Supreme Court ruled to do absolutely nothing about it — neither blocking it nor ruling on its constitutionality — and let the bill proceed, something that might not happen again.
The Supreme Court are likely to rule against Texas' abortion law.
Supreme Court justices Brett Kavanaugh and Amy Coney Barrett, in particular, seemed surprisingly skeptical of the Texas abortion law.
As two of the conservative judges on the bench, Kavanaugh and Barrett’s votes hold a lot of weight in the upcoming ruling.
After the first attempt to block the bill failed on a 5-4 vote after procedural errors, the Supreme Court revisited the law yesterday to discuss its constitutionality and practice.
Both Kavanaugh and Barrett took the floor to say that the Texas Heartbeat Act went too far, and used loopholes in the law to make it work.
In 1908, the Supreme Court in a landmark ruling said people or businesses who are targeted by an unconstitutional law could win relief from a federal judge by naming a state official who would enforce the law.
However, the problem lies with the federal judge aspect of the ruling. The Texas Heartbeat Act went around this by relying on private lawsuits to enforce the unconstitutional law, meaning that the doctors would have to defend themselves in state courts.
Barrett said that this wouldn’t work. Doctors could be sued over a hundred times for a single abortion, but state judges could only rule on one lawsuit at a time.
“You can’t get a global relief,” even if the abortion doctor wins in a state court, she said. “The statute can still be enforced against you.”
Justice Kavanaugh and Chief Justice John G. Roberts Jr. cited a supreme court ruling on civil rights in which the court blocked the use of racially restrictive covenants on deeds that prevented Black Americans or Jews from purchasing a house.
The deeds had been defended by saying that those were private arrangements and had nothing to do with state laws — a situation similar to the Texas Heartbeat Act.
Kavanaugh noted that in the case of Shelley vs. Kraemer in 1948, the high court struck down the deeds because they were using state courts to enforce those restrictions and that the same principle should apply in this case — Texas shouldn’t be allowed to use state courts to enforce an unconstitutional law.
During the three-hour hearing on Monday, it seemed as though six of the nine justices were ready to strike down the law by allowing abortion providers to sue in federal court and seek an order blocking enforcement of the Texas law.
However, this doesn’t say much for future Roe v. Wade challenges that continue to come in year after year.
Roe v. Wade is still under threat.
Just this year, several other states adopted laws similar to Senate Bill 8 as a result of the precedent Texas set.
Florida passed a bill that practically replicates the Texas bill — even including the $10,000 bounty — allowing people to file lawsuits against those involved in abortions after 6 weeks of pregnancy.
Oklahoma saw several abortion bills make it through the gauntlet — passing 3 new anti-abortion bills and blocking 2 others.
But not all is wrong in the world. Illinois introduced a bill on September 14th that allowed women to sue men for unwanted pregnancies as a result of domestic violence and sexual assault.
The Illinois law was named “The Expanding Abortion Services Act,” or TEXAS Act, as a direct result of the restrictive Texas bill.
The Supreme Court has yet to issue a ruling on the procedure of the Texas Heartbeat Act, but will likely allow abortion providers to bring the issue to a federal court to get blocked.
Isaac Serna-Diez is a writer who focuses on entertainment and news, social justice, and politics. Follow him on Twitter here.