Last week, Texas’s Senate Bill 8 – otherwise known as the “Texas Heartbeat Act” – came into effect after a request for an injunction was denied by the U.S. Supreme Court on a 5-4 vote. The bill creates an unprecedented “bounty system” in which any private citizen can sue anyone who is suspected of aiding, abetting, or having an abortion past the sixth week of pregnancy.
The bill has generated considerable outrage among those who support an individual’s right to choose, as it will effectively end 90% of abortions in the state. Meanwhile, those who support limiting or preventing abortions altogether celebrated the lack of an injunction as a huge victory. The effects of the law are far-ranging, and they justify the fear and the hopes of both those who opposed the legislation and those who supported it.
Another piece of legislation, Senate Bill 4, was recently signed into law in Texas, but it has gone largely unnoticed. S.B. 4 prohibits physicians from prescribing drugs that contain levonorgestrel, the effective ingredient in what is commonly referred to as the “morning after pill,” to women who are more than seven weeks pregnant.
The Texas Medical Association, which has over 55,000 members, denounced both bills, calling them “unconstitutional” and claiming they “normalize vigilante interference in the patient-physician relationship.”
While the combination of S.B. 4 and S.B. 8 has dire and immediate consequences for women and others who may become pregnant across the state of Texas, the bills have the potential to impact everyone. There are obvious consequences for those who are victims of sexual assault, and in the United States, it is estimated that a woman is sexually assaulted every 68 seconds. This legislation is also a roadmap for interfering with doctor-patient relationships and for bypassing restrictions that prevent legal suits from being filed that would otherwise have no legal standing.
These laws have the potential to upend the legal process that is the foundation of the court system as it applies to civil lawsuits, and they will devastate healthcare by potentially criminalizing the practice of medicine.
Typically in cases that fall under the heading of tort law, the plaintiff must demonstrate that they have “standing” – that is, they suffered personal harm by the person or entity they are suing. Standing provides the justification for the lawsuit. S.B. 8 removes that legal barrier, effectively turning the court on its head.
David Noll, a professor of law at Rutgers Law School, dubbed S.B. 8 as a “Frankenstein monster” due to the way lawmakers had connected a number of different precedents to create the legislation.
“You vest those decisions in a district attorney or an attorney general, who is subject to ethics laws and looking out for the public interest,” Noll said. “S.B. 8 inverts that by putting private litigants who are motivated by ideological considerations into the position of a government prosecutor.”
The act also subverts and circumvents law at the federal level and undermines the constitution. Typically, if a law is suspected to be unconstitutional, opponents can sue the official charged with enforcing the law. S.B. 8, however, was written so that there is no such official to name. The U.S. Supreme Court pointed to the lack of an official to name in a suit in its decision to deny an injunction. If these laws are allowed to stand, it is not much of a stretch to imagine how these same legislative tactics might be applied to other constitutional protections.
One of the cornerstones and foundational laws upon which Roe v. Wade rests is the right to privacy determined by Griswold v. Connecticut, which is supported by the 14th amendment as it addresses due process and equal protection for citizens under the law. (The 14th amendment’s less-discussed third article disqualifies anyone who has “engaged in an insurrection” against the United States from holding office; the article has been invoked as a possible measure against those who participated in the January 6th insurrection at the U.S. Capitol.)
The 14th amendment supports a number of landmark cases that the far-right end of the political spectrum would gleefully dispense with, like Brown v. Board of Education (racial discrimination) and Reed v. Reed (gender discrimination), if the opportunity presented itself.
In ordinary times, the suggestion of attempting to erode or undermine the 14th amendment would be considered pure folly, but the times we are living in are anything but ordinary.
The failure of the Supreme Court to prevent S.B. 8 from being enacted should be extremely concerning for every person within the U.S. That Chief Justice John Roberts, who is deeply conservative in his beliefs and practices, dissented and sided with the three liberal justices on the court should set off alarm bells for anyone who is paying attention.
S.B. 8 is in direct opposition to well-established federal laws, just as the original Texas anti-abortion law that led to Roe v. Wade was – but unlike in Roe, the Supreme Court refuses to clarify or repudiate this new law. Such a state of affairs speaks to dangerous times ahead when it comes to civil rights, and suggests a dangerous decision to come from the Supreme Court in the future. If the majority of justices agree that it is legal for a stranger to interfere in the patient-doctor relationship and that it is legal for anyone to file a lawsuit despite having suffered no harm – what comes next?
So far the right to freely practice any religion, or none, remains protected under the 1st amendment. But any thinking person should be concerned about how the legal tactics in S.B. 8 might be applied in the future. This is especially true should the Supreme Court do more than simply refuse to intervene, as the situation is now, but instead opt to uphold such a law and give it precedence. Can we imagine a law that says a private citizen can sue anyone suspected of Satanism or Witchcraft? If the rights established in Roe v. Wade can be challenged in this way, the right to religious freedom may be in similar danger.
Anyone who is not alarmed or extremely concerned by the recent court rulings and the laws being enacted at the state level is clearly not paying attention.
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