New Texas Abortion Law is a Bad Omen for Roe v Wade

Published on 13 September 2021 at 11:05

Texas Governor, Greg Abbot, signed into law new restrictions banning abortions in the state after 6 weeks of pregnancy. The law makes no exceptions for incest or rape. The only exemption is if there is a danger to the woman's health.


The so-called ‘Texas Heartbeat Act’ is a marked step away from Roe v Wade, a case which legally enshrined a woman’s right to an abortion in the United States. In a press statement, President Biden said the statute is a “violation of the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century.” The ‘Heartbeat Act’ also allows private individuals to sue abortion providers who help women get the procedure after 6 weeks of pregnancy.


In an unsigned opinion refusing to suspend the law, the majority wrote that although the abortion providers who had brought the case raised “serious questions as to the constitutionality of the Texas law” , they had not met the burden required to block it due to “complex” and “novel” procedural questions. This reasoning, however, was heavily criticised. US Supreme Court Justice Breyer wrote a dissenting opinion and stated recently that the decision was “very, very, very wrong” and flagrantly flies in the face of the US Constitution and Roe v Wade.


To provide a background on this notorious case, Roe v Wade was a landmark decision of the United States Supreme Court which protects a woman’s right to an abortion without excessive government intervention. In January 1973, a 7-2 majority ruled that that due process clause of the 14th amendment provided an unenumerated “right to privacy” which protected the right of a woman to have an abortion. 


This right was balanced against the prenatal life and a test based on the trimesters of pregnancy was introduced. A case in 1992, Planned Parenthood v Casey, reaffirmed the woman’s’ constitutionally protected right to have an abortion. However, the case changed the test to one of foetal viability allowing in all circumstances an abortion up to 20 weeks of pregnancy.  


Many critics of the decision in Roe v Wade saw it as ‘judicial activism’ and that there was no basis for the court to decide between the competing values of protecting women and unborn children. However, in spite of its criticism, Roe v Wade has protected the woman’s right to an abortion in the US for almost 50 years.


Many legal observers were thus in disbelief at the news that, by a 5-4 majority, the US Supreme Court allowed the ‘Texas Heartbeat Act’ to go into effect. The incredulity of many of these legal observers also comes the fact that a major decision on abortion was not expected from the Supreme Court until June 2022.


This decision will be in respect of a Mississippi law banning abortion after 15 weeks of pregnancy. This is seen by anti-abortion activists as their greatest opportunity to strike down Roe v Wade which would then allow individual states to decide their own abortion restrictions. In this case, the Court will rule on the question of whether all pre-viability prohibitions on abortion are unconstitutional.


On a more positive note for many pro-choice activists, the Supreme Court upholding the recent Texas restrictions does not necessarily mean that the precedent set by Roe v Wade has been overturned. Whilst many expected the Court to suspend the law on this issue until after the Mississippi decision, the majority of the Court felt that those who brought the case to the court seeking a ban had not met the high burden required to block the statute until next June.


Whilst this Supreme Court decision does not have any  effect on Roe v Wade, it does serve as a warning for the Mississippi case in June which could have further reaching effects. Five out of the six justices appointed by conservative Republican presidents voted in favour of upholding the abortion restrictions with Chief Justice Roberts being the only conservative opposing it. With the current Supreme Court top-heavy with conservative justices, the Court is poised now more than ever to overturn the long standing precedent.

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