Massachusetts law allows a woman to have an abortion in consultation with her physician, nurse practitioner, or licensed midwife up to 24 weeks of a pregnancy. This timing fits with Supreme Court precedent for when a fetus reaches what is known as viability, meaning the newborn can survive outside the womb by natural or artificial means (artificial, by spending time in an incubator).
Compare this to the new Texas law, SB8, which reduces this choice to six weeks: that is, when a physical examination reveals a fetal heartbeat, which is why it is known as “a heartbeat law.” Many women do not even know they are pregnant within that time frame. It went into effect on Sept. 1.
In light of Supreme Court precedent, the law is unconstitutional on its face. Even more, it does not even work from a procedural perspective, which is addressed at the end of this commentary. Meantime, the Supreme Court already has on its docket for Dec. 1 a Mississippi law prohibiting abortion after 15 weeks (Dobbs v. Jackson Health Women’s Health Organization).
First, some background on the Texas law.
While several courts have tossed out heartbeat laws as violations of Supreme Court precedent, this law has not yet been tested in detail in a trial court. Whole Women’s Health, a Texas family planning clinic, asked a Texas state judge to halt its enforcement, but he declined. Judge Austin Reeve Jackson stated at the time, “I am 100 percent committed to seeing this frivolous lawsuit dismissed, the attempts to run Christians out of elected office defeated, and the voice and the vote of pro-life Texans defended.”
The U.S. Court of Appeals did stop it, but the Supreme Court stepped in, and ruled five to four to lift the hold, pending further litigation. Three of the justices in the majority were President Trump’s nominees, giving rise to some commentators noting that his goal was to end abortion. The dissent, led by Chief Justice John R. Roberts Jr., included the three liberal justices.
The majority’s unsigned opinion held that the law “presents complex and novel antecedent procedural questions on which [the appellants] have not carried their burden.”
The law takes a different approach to enforcement. Normally, a law requires state officials to determine when a law has been violated. But not here. This law allows a private citizen to sue anyone who aids and abets a woman who aborted a fetus having “a fetal heartbeat,” which is not a medical or clinical term. If successful, those filing suit may collect up to $10,000 plus legal fees. The law even allows residents of other states to sue someone in Texas who helps a woman obtain an abortion if there is a fetal heartbeat. This may include the taxicab or Uber driver.
Patients themselves may not be sued.
While the five justices in the majority did not explicitly say what they meant by “complex and novel” questions, they probably had in mind the law’s provision allowing private citizens, not state officials, to enforce the law. But is this so novel? Or complex?
There are several reasons why this law must fail, well beyond the obvious fact that it violates Supreme Court precedent set out in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The rule is that no law can prevent a woman from deciding to have an abortion if it presents “an undue burden” that stops her: An undue burden is defined as “a substantial obstacle.” Certainly, this law is a substantial obstacle on its face.
Writing recently in the Boston Globe, former Harvard Law professors Laurence H. Tribe and David Rosenberg recount a successful lawsuit they took before the Supreme Court in 1982, Larkin v. Grendel’s Den. The law in Cambridge allowed any church to shutter a bar within 500 feet of the church’s location. No city official enforced the law, the church did.
In his eight-to-one ruling, Chief Justice Warren Burger wrote that the law unconstitutionally “substitutes the unilateral and absolute power of a church for the reasoned decision making of a public legislative body acting on evidence and guided by standards, on issues with significant economic and political implications.”
Some observers have noted that if this law stands, a blue state like Massachusetts could outlaw all handguns by allowing private citizens to sue someone whom they think owned or carried such a firearm. Farfetched? Maybe, maybe not.
Meantime, the U.S. Department of Justice has challenged the law in federal district court. But here is the key procedural problem that few people are addressing. The law has serious problems concerning the law of standing. For any successful civil suit to succeed, the person filing suit must show a substantial and personal injury. Private citizens may abhor abortion, and even want to end it. But they cannot simply file suit because they dislike the procedure. They have to show that their injury is particularized and concrete and substantial and personal, not because the procedure is repulsive.
All courts including the Supreme Court should overturn the law on simple procedural grounds, even if the five justices in the recent majority decline to see a constitutional violation based on 50 years of its own precedents.
Jack Fruchtman, who lives in Aquinnah, is updating his book, American Constitutional History.