Why the highly restrictive law in Texas threatens the right to abortion in the United States

The so-called “heartbeat” law (“Heartbeat act”) entered into force in the US state of Texas, Wednesday 1er September, opens the way to a questioning of forty-eight years of case law protecting the right to abortion in the United States. Voted in the spring by the state assembly, historically conservative, the measure prohibits any abortion as soon as the fetus’s heart activity begins – i.e. from about six weeks of pregnancy -, in apparent contradiction with the protection guaranteed by the ‘Roe v. Wade: adopted by the Supreme Court in 1973, this major text in American legal history considers the choice to abortion as a right to privacy over which the government cannot intervene during the first trimester of pregnancy.

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A case law since extended in a decision of the Supreme Court in 1992 (States cannot impose on women a “Excessive demand” in access to abortion before about six months of pregnancy), itself reinforced in 2016.

The line adopted by the Supreme Court has been attacked several times since 1973. In 2019, five states had already passed laws lowering the period during which an abortion is possible to less than eight weeks of pregnancy, but these had been suspended. before their entry into force. On Wednesday, the Supreme Court did not make the same decision on the pretext of “Novel and complex procedural issues” raised by the review of this new law in Texas.

The Texan text prohibits, therefore, any abortion from the moment a “Fetal heartbeat” is detected, approximately after six weeks of pregnancy. No exception is provided for in the event of rape or pregnancy following incestuous intercourse: only endangering the mother’s life can allow a request after this period.

If the proposal is not new, its implementation differentiates it from previous campaigns of elected anti-abortion on one point: the state of Texas is not authorized to initiate proceedings. A procedure can only be opened in civil, at the initiative of citizens.

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This provision serves as a bulwark of legal remedies. Roe v. Wade only mentions the rules whose application is the responsibility of states: it is on this point that supporters of the right to abortion usually base their appeals, for example by contesting prosecutions brought by prosecutors. against clinics agreeing to support women wishing to have an abortion.

However, what reaction to adopt when no authority is designated to enforce the law? “An appeal before the entry into force of the law is in my opinion impossible, anticipated, as early as May, Josh Blackman, professor of constitutional law at the University of South Texas. Why ? Because there is no one to sue! (…) The governor [de l’Etat] signed the text but has no power to apply the law. ” The researcher then considered that the first complaints had to be filed under the text so that defenders of the right to abortion could make their arguments heard in court.

  • The text does not directly target women but dissuades anyone likely to help them

Instead of the prosecutor’s office, any citizen, even without any connection to the person who performed an abortion beyond the onset of the fetal heart activity, can decide to file a complaint. With a nuance of size: the women themselves cannot be affected by the lawsuits.

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The offense created targets, on the one hand, doctors performing abortions, and on the other, “Anyone who would come to the aid [“aid and abet”] to performing an abortion ” after the imposed deadline. The perimeter of this ” aid “ could be broad: the text voted on includes financial assistance from insurance companies; accompanying a woman by car to the hospital with knowledge of her plan to have an abortion could also, another example, become reprehensible.

Everything is done to make the proceedings of the accused more complex: even if the court finds them right, they cannot ask for reimbursement of their legal fees. The plaintiffs, in the event of victory, obtain for their part this reimbursement and compensation set at a minimum of 10,000 dollars (approximately 8,500 euros). One way to encourage Texans to participate in the device while dissuading women wishing to have an abortion, as well as establishments willing to welcome them.

  • An “unprecedented” law before the Supreme Court

Opponents of the measure had seized ” emergency “ the Supreme Court, which refused, Wednesday, to interrupt the entry into force of the text. Five of the nine judges voted not to examine the substance of the law, without refusing to debate it in future appeals.

“An obviously unconstitutional law, designed to deprive women of their constitutional rights and escape any thorough legal scrutiny”, however considered Sonia Sotomayor, one of the judges opposed to the decision, in an argument made public. “The proposed legislative scheme is not only unusual, it is unprecedented”, continued Judge John Roberts, classified as Conservative, but who voted to suspend the law.

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The choice of the Texas Parliament to vote on this text in the spring of 2021 is no accident: the successive arrivals of the judges appointed by Donald Trump (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) to the Supreme Court, combined with the death of Judge Ruth Bader Ginsburg, who defended gender equality, tipped the proceedings towards a conservative majority. Another sign of this is their recent decision to hold a fall hearing on a Mississippi law lowering the time limit for abortions to fifteen weeks pregnant that would not have been previously considered.

Tribune: “The objective of the laws prohibiting abortion before the threshold of viability is to call into question the case law in force”

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