A Major Sea Change in Abortion Law

Shenan J. Boquet
October 25, 2021
Reproduced with Permission
Human Life International

The last few weeks have been extremely eventful ones in the battle over Texas' hotly contested Heartbeat abortion law.

The Texas law, which prohibits abortion from the moment when an unborn child's heartbeat is first detected (around six weeks), is the first such law to go into effect anywhere in the nation. Over a dozen other states have also passed Heartbeat laws. However, they have consistently been struck down by the courts, based on arguments that that they violate Roe v. Wade and other legal precedent.

The Texas law, however, is unusual in that rather than putting the onus of enforcing the law on state legal authorities, it instead exclusively empowers private citizens to sue abortion facilities that violate the law. They can also sue anyone who "aids or abets the performance or inducement of an abortion."

Since constitutional challenges to laws are normally brought against the state authorities responsible for enforcement, the legal question of who (if anyone) has standing to sue to stop the law remains murky. For now, this unique feature of the law has protected it from the same fate that all other Heartbeat laws have met.

Abortion activists were stunned when the U.S. Supreme Court did not issue a temporary injunction against the law before it went into effect at midnight on Sept. 1. Even more surprising is when the Court, later that day, announced that it would not intervene, instead permitting it to stay in effect while legal challenges are heard.

As a consequence, for almost two months now it has been illegal to perform most abortions in the Lone Star State. According to Texas abortionists , over 85% of abortions in the state take place after six weeks. Pro-life groups estimate that thousands of children have already been saved as a result.

Law Blocked, Then Reinstated

That said, we've always known that it was likely only a matter of time until some pro-abortion judge stepped in. That hammer blow fell earlier this month, when a U.S. District judge agreed to a request from the Biden administration's Justice Department (DOJ) to block enforcement of the law.

In a scathing ruling , U.S. District Judge Robert Pitman (an Obama appointee) rejected Texas' request that the court refrain from imposing an injunction until the case had received appellate review. "The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right," wrote Pitman.

That "well-established constitutional right" is, of course, the "right" for women to have their unborn children killed. Judge Pitman concluded his opinion, saying that he would not "sanction one more day of this offensive deprivation of such an important right."

Pro-life leaders slammed the judge's ruling. Marjorie Dannenfelser, president of the pro-life group Susan B. Anthony List, said the ruling interferes "with the clearly expressed will of Texans."

"The people of Texas speaking through their state legislators acted to protect unborn children with beating hearts, who are as human as you and me," Dannenfelser said. "For two generations, the U.S. Supreme Court has tied the hands of states to enact laws protecting unborn children and their mothers. It is time to restore this right to the people and update our laws."

Fortunately, however, this state of affairs did not last long. Just over a week later, the United States Court of Appeals for the Fifth Circuit struck down Judge Pitman's ruling in a terse, one paragraph ruling.

Texas Right to Life welcomed that court's ruling. They also warned, however, that the victory may only be temporary. "We are excited to continue saving hundreds of lives through the Texas Heartbeat Act," communications director Kim Schwartz said at the time. "However, the battle is not finished. We expect the Biden administration to appeal to the Supreme Court of the U.S., and we are confident Texas will ultimately defeat these attacks on our life-saving efforts."

Schwartz was quite right about the Biden administration's intentions. Within days the administration had filed an emergency appeal to the U.S. Supreme Court, asking for an injunction blocking the law.

In their emergency application , the DOJ called the Texas law "clearly unconstitutional" and criticized the state for its unusual strategy. "Texas is not the first state to question Roe and Casey," the DOJ said. "But rather than forthrightly defending its law and asking this Court to revisit its decisions, Texas took matters into its own hands by crafting an 'unprecedented' structure to thwart judicial review."

Prayers Urgently Needed

As of today, that is where matters stand - with the law still in effect, but threatened by a concerted effort by the Biden administration and every pro-abortion organization in the country to ensure that abortion returns to Texas as quickly as possible.

At the end of last week, news broke that the Supreme Court had agreed to an emergency hearing on the law on Nov. 1. In the meantime, they said they would not block the law.

At this point in time, it is difficult to say how the Court will decide. As SCOTUS Chief Justice John Roberts wrote in his dissenting opinion in September, the Texas law's mechanism of enforcement "is not only unusual, but unprecedented." As such, the Court is going to have to devise new legal reasoning to address this novel situation.

Pro-abortion activists fear that the high Court's conservative majority is willing to allow this situation to continue. They certainly have good reason to fear. It is almost certain that prior to the addition of President Trump's nominees, the Court would promptly have suspended the law. The shock and dismay from pro-abortion activists that the law remains in force is not an act. It is a response to a very real sea change at the Court. Clearly, many of the judges are at least sympathetic to the law.

The fact that the Court is trending pro-life, at least in sentiment, is further confirmed by the Court's willingness to listen to arguments in a challenge to a Mississippi law that bans abortion after 15 weeks. As pro-abortion activists have pointed out, this law clearly seems to violate Roe v. Wade . As such, the only conceivable reason for the Court to actually hear the case, rather than summarily dismiss it, is if enough of the justices are at least open to overturning or modifying Roe . That case is scheduled to be heard in December.

As pro-lifers have learned the hard way over the decades, however, hopes that the Court will overturn Roe have a habit of being cruelly dashed.

And yet, there is no denying that this time around, something feels different. The current Supreme Court justices are making decisions that previous justices would not have. There is reason to hope that either the Texas case or the Mississippi case will usher in a major change in abortion law in the United States. That could include creating a new path forward for abortion bans that do an end run around Roe (the Texas case) or completely or partially overturning Roe (the Mississippi case).

Either way, there is an urgent need right now for pro-life activists everywhere to fast and pray for a positive outcome to these cases. The pro-life justices on the High Court are going to need immense courage to withstand the pressure from the Biden administration, and the hatred from abortion supporters everywhere, in order to do the right thing.

When reading about these dry legal proceedings in the courts and legislatures, it can be very easy to lose sight of what's actually at stake. But in Texas, right now , children are not being killed because Texas legislators have the guts and the principle and the creativity to find a new way to protect unborn children, and then to make it happen.

Meanwhile, pro-abortion organizations are scheming to find out ways to circumvent the Texas law, ensuring that women can still kill their children. One group is fundraising to send mobile abortion units to Texas, to distribute the abortion pill.

After decades of legal abortion, it can become difficult even to conceive of the possibility that we might actually win this fight. Of course, when you look into it, pro-life activists have actually been winning for years. Year after year, pro-life legislators pass record numbers of pro-life state laws (that's certainly true of this year ). Year after year, the abortion rate keeps falling.

And yet, despite all of our successes, some three-quarters of a million unborn children are murdered every year in the United States. We must be grateful for all the progress made. But we cannot rest until every unborn child is protected from the moment of conception. Please God that these upcoming Supreme Court cases will mark the beginning of the end of legal abortion in the United States.