The Procedural and Substantive Issues of Texas’ Six-Week Ban on Abortion and the Future of Roe v. Wade

I. Introduction

In a recent 5-4 decision, United States (“U.S.”) Supreme Court denied plaintiffs’ request to grant injunctive relief to enjoin defendants from enforcing a Texas law that imposes a six-week ban on abortion.^[1] The Texas law bans abortions after cardiac activity is detected in an embryo, which usually occurs after about six weeks of pregnancy.^[2] The law seeks to avoid judicial review by allowing only private citizens to bring civil enforcement actions and forbidding state actors from enforcing any provisions under the statute.^[3] The U.S Supreme Court majority held, “[i]t is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”^[4] This ruling came shortly after the U.S. Court of Appeals for the Fifth Circuit ordered an administrative stay of the district court’s denial of the defendants’ motions to dismiss.^[5]

Justice Sotomayor dissented, stating, “[T]he court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas.”^[6] The problem with the six-week abortion ban is that many women may not know they are pregnant during the six-week time frame, ‘according to health experts.’^[7] Regarding pregnancies resulting from rape or incest, the Texas law provides that only the person who impregnated the abortion patient by these means shall not be able to enforce a civil action under the statute.^[8] Attorney General Merrick B. Garland explained that “[t]his kind of scheme to nullify the Constitution of the United States is one that all Americans — whatever their politics or party — should fear.”^[9]

The new abortion law in Texas presents both procedural issues of justiciability and uncertainties concerning the substantive law of abortion. The purpose of this note is to explain how the law has been able to escape judicial review and why the law is unconstitutional. The first part of the paper will provide a brief background on the Texas abortion law and a brief procedural history leading up to the Supreme Court’s decision. The second part of the paper will discuss the complex procedural issues, including sovereign immunity and Article III standing. The third part of the paper will discuss the substantive issues by going through a constitutional analysis of the new Texas abortion law. The third part of the paper will also discuss the future of Roe v. Wade based on previous rulings on restrictive abortion laws, Senate Confirmation Hearings, and interviews. Lastly, the fourth part of the paper will briefly discuss recent lawsuits relating to the abortion law that were filed after the Supreme Court’s decision.

II. Background

A. Senate Bill 8

Senate Bill 8 took effect on September 1, 2021 and is now codified in Tex. Health and Safety Code § 171.201-12.^[10] The new Texas statute makes it illegal for a physician to knowingly perform or induce an abortion on a pregnant woman if a physician detects a fetal heartbeat for the unborn child or if a physician failed to perform a test to detect a fetal heartbeat.^[11] The statute defines “a fetal heartbeat” as “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.”^[12] The statute’s ban on abortion has been referred to as a “six-week ban” because detectible embryonic or fetal cardiac activity typically occurs six weeks from the last menstrual period.^[13] Under the six-week ban, any person, other than a state official, may bring a civil action against anyone who (1) provides, (2) knowingly aids or abets, or (3) intends to engage in a prohibited abortion. ^[14]

The statute financially incentivizes private citizens to bring civil action against violators, but financially penalizes defendants. A private citizen who prevails in a civil suit brought under the six-week ban may be awarded (1) “injunctive relief sufficient to prevent” a defendant from performing or aiding and abetting a violation of the statute; (2) an amount of no less than $10,000 in statutory damages for each abortion that the defendant performed or aided and abetted; and (3) cost and attorney’s fees for the plaintiff.^[15] While prevailing plaintiffs are entitled to costs and attorney’s fees, the statute imposes harsh financial penalties on defendants, and a court may never award costs or attorney’s fees to a defendant in an action brought under the statute.^[16] Thus, even though a defendant could be sued over one-hundred times under the statute, a court would not be able to award costs and attorney’s fees if the defendant prevailed on all the claims.

B. Procedural History

Whole Women’s Health filed suit on July 13, 2021, in the U.S. District Court for the Western District of Texas, Austin Division.^[17] Plaintiffs brought a pre-enforcement challenge to prevent Senate Bill 8 from taking effect on September 1, 2021, by requesting declaratory and injunctive relief.^[18] The plaintiffs were composed of “Provider Plaintiffs,” who provide abortion services, and “Advocate Plaintiffs,” who support patients needing an abortion.^[19]

The Provider Plaintiffs alleged that most of the abortions they perform occur after the six-week ban imposed by S.B 8.^[20] Thus, Provider Plaintiffs alleged that if S.B 8 were to take effect, they and their staff would suffer profound harm to their property, business and reputation, and a deprivation of their own constitutional rights.^[21] The plaintiffs further alleged that S.B 8’s fee-shifting provision would have an impact on their right to petition the courts and to speak freely due to the ruinous liability for the cost of attorney’s fees associated with lawsuits to vindicate their constitutional rights. Furthermore, Advocate Plaintiffs alleged that because they advocate for abortion through activities, if S.B 8 were to take effect, they would likely face lawsuits for aiding and abetting abortions prohibited by S.B 8.^[22] They explained they would likely face costly and burdensome lawsuits because S.B 8 incentivizes lawsuits by providing a generous award of fees to a successful claimant.^[23]

The plaintiffs sought relief against two types of defendants, the Judicial Defendants and State Agency Defendants (“SAD”), based on their authority to constrain the plaintiffs and their physicians, nurses and pharmacists from violating S.B’s restrictions on providing and assisting with abortion.^[24] The Judicial Defendants consisted of the Honorable Austin Reeve Jackson, a judge for the 114^th District Court in Smith County, Texas, and Penny Clarkston, a Clerk for the District Court of Smith County. Both Jackson and Clarkston were sued in their official capacities and as representatives of two putative classes consisting of all state judges and clerks in the state of Texas with the authority to initiate S.B 8 enforcement actions.^[25] The SAD defendants consisted of the Executive Directors of the Texas Medical Board, Texas Board of Nursing, and Texas Board of Pharmacy, the Executive Commissioner of the Texas Health and Human Services Commission, and the Attorney General of Texas.^[26] The plaintiffs also brought suit against Mark Lee Dickson because he expressed his intent to bring civil enforcement actions as a private citizen under S.B. 8.^[27]

The Judicial Defendants filed a motion to dismiss for lack of subject matter jurisdiction.^[28] The Judicial Defendants argued that plaintiffs’ claims were not cognizable because there was no case or controversy under Article III, that plaintiffs lacked standing to bring their claims, and that sovereign immunity barred the plaintiffs’ claims.^[29] The SAD also filed a motion to dismiss, arguing that the Provider Plaintiffs’ claims against them should be barred by sovereign immunity and lack of standing.^[30] Dickson also filed a motion to dismiss, arguing that the plaintiffs had no standing to sue him.^[31]

The district court denied the defendants’ motion to dismiss.^[32] The U.S. Court of Appeals for the Fifth Circuit granted the defendants’ motion for a temporary administrative stay of all district court proceedings along with a hearing for injunctive relief.^[33] The plaintiffs appealed to the United States Supreme Court and requested injunctive relief or, in the alternative, that the Court vacate the stay of the district court proceedings.^[34] In a 5-4 decision, the Supreme Court denied plaintiffs’ application for injunctive relief.^[35] The majority consisted of Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett.^[36] Chief Justice Roberts, Justice Breyer, Justice Sotomayor, and Justice Kagan dissented.^[37]

III. Procedural Issues

The U.S Supreme Court stated that the plaintiffs’ application for injunctive relief present “complex and novel antecedent procedural questions.”^[38] In deciding whether to grant injunctive relief, the Court considered the following factors: (1) a strong showing that that the applicant would likely succeed on the merits; (2) whether the applicant would suffer irreparable injury absent a stay; (3) whether other interested parties would suffer substantial injury; and (4) whether the injunction would be consistent with public interest.^[39] However, the Court refused to grant injunctive relief because it was unclear whether sovereign immunity barred plaintiffs’ claims against state judges and because plaintiffs lacked Article III standing to sue.^[40]

A. Sovereign Immunity

The Eleventh Amendment of the U.S. Constitution typically insulates a state, a state agency, or a state official from being sued in federal court unless “that state has waived its sovereign immunity or Congress has clearly abrogated it.”^[41] However, the U.S Supreme Court carved out an exception to sovereign immunity in Ex Parte Young.^[42] The Court in Young held that “lawsuits may proceed in federal court when a plaintiff requests prospective relief against state officials in their official capacities for ongoing federal violations.”^[43] For the Ex Parte Young exception to apply, the suit must “(1) be brought against state officers who are acting in their official capacities, (2) seek prospective relief to redress ongoing conduct, and (3) allege a violation of federal, not state law.”^[44]

Judicial Defendants argued plaintiffs’ claims against them were barred by sovereign immunity.^[45] Plaintiffs claimed that state judges (Judicial Defendants) should not be protected by sovereign immunity because they are being sued in their official capacities to prevent future actions enforcing an allegedly unconstitutional law.^[46] Furthermore, plaintiffs argue that relief under Ex Parte Young could be applied to challenges under 42 U.S.C.S. § 1983.^[47] In 1996, Congress amended Section 1983 to make clear that in an “action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”^[48]

The majority for the U.S Supreme Court held it was not clear “whether, under existing precedent, the Court could issue an injunction against state Judges.”^[49] The district court reasoned that Judicial Defendant’s enforcement role in the Texas law’s private enforcement mechanism brought them within the “carveouts courts have created to allow Section 1983 challenges to laws to proceed against state court officials under the Ex Parte Young exception to sovereign immunity.”^[50] Thus, the district court held that plaintiffs’ claims were not barred by sovereign immunity.^[51]

The Fifth Circuit cited the U.S Supreme Court’s holding in Young, which explains that, “an injunction by a Federal court against a state court would violate the whole scheme of this Government, and it does not follow that because an individual may be enjoined from doing certain things a court may be similarly enjoined.”^[52] The Fifth Circuit reasoned that the language from Young excludes judges from the scope of relief it authorizes.^[53] The court found that the declaratory relief that plaintiffs sought is not “unavailable,”, but only “temporarily unavailable” because the plaintiffs do not yet have an “actual controversy” between themselves and state judges.^[54] Thus, the Fifth Circuit held that the 1996 amendment to 42 U.S.C.S. § 1983 has no effect because 'temporary availability," which is that the plaintiffs assert, is not “unavailability.”^[55]

The court reasoned that the parties are not adverse to each other because “judges are disinterested neutrals who lack a personal interest in the outcome of a controversy.”^[56] The circuit court found that the plaintiffs’ attempt to challenge the Texas law by suing state judges was absurd and would violate the Eleventh Amendment and Ex Parte Young, and would ignore state separation of powers.^[57] Thus, the circuit court held that the plaintiffs’ claims against Judicial Defendants were barred by sovereign immunity and the Young Exception did not apply.

B. Standing

Article III of the U.S. Constitution limits federal courts to adjudicating actual “cases” and “controversies.”^[58] Under Article III, a plaintiff must first have “standing” to invoke the power of a federal court.^[59] In order for a plaintiff to have Article III standing, the plaintiff “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.”^[60] The injury alleged must also be “distinct and palpable” and not “abstract” or “conjectural” or “hypothetical.”^[61]

1. The Majority’s Opinion

The majority, consisting of Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett reasoned that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”^[62] The majority cited to California v. Texas, where plaintiffs claimed that Patient Protection and Affordable Care Act’s minimum essential coverage requirement was unconstitutional.^[63] The Act imposed a monetary penalty upon individuals who failed to obtain minimum essential health insurance coverage.^[64] However, Congress nullified the penalty by setting the amount at $0.^[65] The Court held that the plaintiffs lacked standing because the statutory provision had no means of enforcement due to the fact that the IRS could no longer seek a penalty from those who failed to comply.^[66] Thus, the Court reasoned that the plaintiffs’ injury was not “fairly traceable” to any “allegedly unlawful conduct” because the plaintiffs never pointed to any way in which the defendants would act to enforce the statutory provision.^[67]

The majority then cited to Clapper v. Amnesty Int’l USA, where plaintiffs sought a declaration from the Supreme Court that Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1881(a) was unconstitutional.^[68] The statute allowed government officials to acquire foreign intelligence information by authorizing the surveillance of individuals who are not “United States persons” and are reasonably believed to be located outside the United States.^[69] Plaintiffs claimed that their work required them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under § 1881(a).^[70] The sole issue before the Court was whether the plaintiffs had Article III standing to seek relief.^[71]

The plaintiffs in Clapper asserted they could establish “injury-in-fact” because there was an objectively reasonable likelihood that their communications would be acquired under §1881(a) at some point in the future.^[72] However, the Supreme Court held that plaintiff’s theory of future injury was too speculative to satisfy the requirement and that the threatened injury must be “certainly impending.”^[73] The Court held that even if the plaintiffs could satisfy the requirement, they would still not be able to prove that the threatened injury was fairly traceable to § 1881(a).^[74] The plaintiffs also contended they were suffering present harm because the risk of authorized surveillance forced them to take costly and burdensome measures to protect the confidentiality of their international communications.^[75] However, the Court held that the plaintiffs could not “manufacture standing” by choosing to make expenditures based on hypothetical future harm that was not certainly impending.^[76] Thus, the Court held in Clapper that plaintiffs lacked Article III standing to seek their requested relief.^[77]

While citing to California v. Texas, the majority implied that the plaintiffs lack standing because they have not pointed to any way in which SADs would be able to act or enforce the six-week abortion ban. The district court reasoned that the State’s ability to enforce anti-abortion laws through actual use of disciplinary proceedings against medical professionals who violate laws that trigger such discipline was sufficient to create a credible threat of impending injury for Provider Plaintiffs to have standing to sue.^[78] However, the U.S. Court of Appeals for the Fifth Circuit held that the district court ignored the statute’s plain language, which states, “notwithstanding section 171.207(a) or any other law, the requirements of this subchapter shall be enforced exclusively through private civil actions.”^[79] Thus, the circuit court held that none of the SADs had any kind of “enforcement connection” in light of the statute’s express language.^[80]

The plaintiffs alleged future injury by claiming that if S.B. 8 were to take effect, they would suffer “profound harm to their property, business reputations, and a deprivation of their own constitutional rights.”^[81] However, while citing Clapper, the majority implied that the plaintiffs’ threatened injury was not “certainly impending” by stating, “it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”^[82] Like in Clapper, the majority reasoned that plaintiffs’ claims against SADs were “too speculative.”^[83] The Court went on to reason that, “The State has represented that neither it nor its executive employees possess the authority to enforce the Texas Law directly or indirectly.”^[84]

The majority also noted that the private defendant, Mark Dickson, filed an affidavit stating that he has no present intention to enforce the law.^[85] Like in both Clapper and California v. Texas, the Court found that the plaintiffs’ claims were not fairly traceable to S.B. 8 because plaintiffs did not prove that the defendants would act to enforce the statutory provision.^[86] Therefore, the majority reasoned that the plaintiffs’ injuries were not certainly impending and not fairly traceable to any alleged unlawful conduct, and thus held that the plaintiffs had not met their burden to prevail in an injunctive or stay application.^[87]

2. Justice Breyer’s Dissenting Opinion

Justice Breyer dissented. He reasoned that the Court, in the past, had permitted other applicants to bring pre-enforcement challenges where “the threatened constitutional harm was less serious, and the threat of enforcement was less certain.”^[88] Justice Breyer cited Virginia v. American Booksellers Association, in which the plaintiffs, several bookstore owners, brought a pre-enforcement action to enjoin the Arlington County Chief of Police from enforcing a Virginia statute; which the plaintiffs claimed violated their First Amendment rights.^[89] The Virginia statute made it unlawful for any person “to knowingly display for commercial purposes in a manner whereby juveniles may examine and peruse” certain visual or written sexual material that is harmful to juveniles.^[90] The Supreme Court held that the plaintiffs had established an “injury in fact” because the Virginia statue was directly aimed at the plaintiffs and could cause the plaintiffs to “take significant and costly compliance measures or risk criminal prosecution.”^[91] Since the State had not suggested that the new law would not be enforced, the Court held that the plaintiffs had standing to sue because they had alleged “an actual and well-founded fear” that the new law would be enforced against them.^[92]

Next, Justice Breyer cited to Babbitt v. UFW Nat’l Union, in which the plaintiffs, United Farm Workers National Union, brought a pre-enforcement action to enjoin state actors from enforcing the Arizona Agricultural Employment Relations Act, that the plaintiffs claimed violated the First Amendment.^[93] The statute designated various procedures governing the election of employee bargaining representatives, in which the plaintiffs claimed would “frustrate” the democratic process.^[94] The defendants argued that the Court should decline to decide on the merits of the plaintiffs’ first amendment claim until the plaintiffs held an election under the Act’s new election procedures.^[95] However, the Court held that waiting for the plaintiffs to participate in an election would not assist the Court’s resolution of whether the election procedures are subject to scrutiny under the First Amendment.^[96] The Court held that the plaintiffs had standing to bring their claim that the Arizona statute violated the First Amendment.^[97]

Lastly, Justice Breyer cited Susan B. Anthony List v. Driehaus, in which the plaintiffs sought a pre-enforcement action to enjoin the Ohio Elections Commission from enforcing an Ohio statute, which the plaintiffs claimed violated the First Amendment.^[98] The Ohio statute made it illegal for any person to “[m]ake a false statement concerning the voting record of a candidate or public official.”^[99] Furthermore, the statute allowed any person acting on personal knowledge to file a complaint with the Ohio Elections Commission alleging a violation of the false statement statute.^[100] The Court held that the combination of (1) burdensome Commission proceedings and (2) the threat of criminal prosecution was enough to create an Article III injury under the circumstances of this case.^[101]

Here, like in Virginia v. American Booksellers Association, the Texas statute is directly aimed at the plaintiffs because the statute directly seeks to financially penalize anyone who provides or aids and abets an abortion to a patient after six-weeks.^[102] Since the plaintiffs are composed of several abortion providers, the statute could likely impose costly compliance measures or risk private civil enforcement actions against the plaintiffs. The bulk of the abortions that Texas abortion clinics provide occur after six weeks.^[103] The plaintiffs allege that if the Texas law were to take effect, they could not “sustain operations.”^[104] Thus, like in American Booksellers Association, the plaintiffs risk costly compliance measures in order to avoid being sued.

When the Supreme Court refused to grant injunctive relief, the plaintiffs had not yet performed an abortion under the new Texas law’s abortion procedures. As in Babbitt v. UFW Nat’l Union, Texas abortion providers could argue that waiting for them to perform an abortion under the restrictions of the six-week ban would likely not assist the Court’s resolution as to whether the statute’s six-week ban on abortion would be subject to a constitutional analysis. Similar to the statute in Susan B. Anthony List v. Driehaus, the Texas statute allows for any private citizen acting on personal knowledge to enforce the statute. Also, as in Driehaus, the court proceedings against the plaintiffs would be burdensome because the statute allows huge financial incentives for private citizens to enforce a civil action against abortion providers who provide abortions after six-weeks. However, unlike American Booksellers Association , UFW Nat’l Union, and Driehaus, the Texas statute does not impose a threat of criminal prosecution and also precludes state actors from enforcing the statute.^[105]

The Texas legislature purposefully made it difficult for plaintiffs to bring a pre-enforcement action, because it is nearly impossible to point to one single defendant who will seek to enforce the statute. Justice Breyer explained in his dissent that the delegation of the State’s power to prevent an abortion to any private citizen should not make a critical legal difference because it still threatens to invade a constitutional right.^[106] Breyer sought to resolve the standing issue by proposing that the Court permit lawsuits against certain delegates who are likely to enforce their delegated power, as well as officials whose actions are necessary to enforce the statute.^[107] Breyer’s reasoning for proposing such procedures was that each individual should have the ability to ask the judiciary to protect them from an invasion that threatens an immediate and serious injury of their constitutional rights.^[108]

The purpose of pre-enforcement actions is to prevent U.S. citizens from suffering a deprivation of their constitutional rights. The danger of laws like S.B. 8 should encourage the Supreme Court to create a new rule for pre-enforcement challenges, so that U.S. citizens will not be deprived of their constitutional rights. S.B. 8 threatens immediate and serious injury to Texas citizens’ constitutional right to an abortion. The new rule should prevent state legislatures from delegating enforcement power to its citizens that a state itself cannot enforce due to its unconstitutionality. Such delegation of power only seeks to shield state actors from liability and deprive its citizens of their constitutional rights. That rule should provide that if a state legislature (1) passes an unconstitutional law and (2) the power to enforce said law is delegated to a non-state actor, then the Court should grant an injunction to prevent the law from being enforced.

IV. Substantive Issues

The majority for the U.S. Supreme Court explained that its holding was not “based on any conclusion about the constitutionality of Texas’ law.”^[109] The Court made clear that their its ruling has no effect on the substantive law of abortion. Chief Justice Roberts stated in his dissent, “the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”^[110] Justice Sotomayor was particularly vocal about her disdain for the majority’s ruling, she dissented by stating, “The Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.”^[111] In analyzing whether the new Texas statute is unconstitutional, one must first look to the substantive law on the states’ power to regulate abortion.

A. Constitutional Analysis Under Roe v. Wade and its Progeny

In the landmark case Roe v. Wade, The U.S. Supreme Court held the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution provides a woman the right to terminate her pregnancy.^[112] The Court reasoned that a woman’s right to her bodily autonomy must be weighed against the state’s interest in protecting women’s health and the potentiality of human life.^[113] In striking a balance between the woman’s interest and the state’s interest, the Court held that a state could not regulate abortion before a fetus reached viability.^[114] “Viability” is when “the fetus has the capability of meaningful life outside the mother’s womb.”^[115] In the United States, viability presently occurs at approximately twenty-four weeks of gestational age.^[116] In Planned Parenthood v. Casey, the Court held that a state could regulate pre-viable abortions so long as such regulations did not create an “undue burden” in the path of a woman seeking an abortion before viability.^[117] Under the “undue burden” test, a state statute will be held unconstitutional if the statute’s purpose or effect “places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”^[118]

In 2016, in a 5-3 decision, The U.S Supreme Court held in Whole Woman’s Health v. Hellerstedt, that a Texas statute requiring abortion providers to hold “active admitting privileges at a hospital” within thirty miles of the place where they perform abortions was unconstitutional because it placed an undue burden on women seeking an abortion.^[119] The Court reasoned that the statute imposed an undue burden because the statute did not further the State’s asserted interest in protecting women’s health and “help[ed] to explain” the closure of half of Texas’ abortion clinics.^[120] The Court found that the closure of so many abortion clinics placed a substantial obstacle in the path of Texas women seeking an abortion.^[121] The Court held that such an obstacle, “when viewed in light of the virtual absence of any health benefit,” imposed an “undue burden” on abortion and violated the U.S. Constitution.^[122]

In 2020, in a 5-4 decision, the U.S Supreme Court once again held in June Med. Servs. L.L.C. v. Russo, that a Louisiana statute that required abortion providers to hold “active admitting privileges” at a hospital no further than thirty miles from where they performed an abortion was unconstitutional.^[123] The Louisiana statute defined “active admitting privileges” to mean that the doctor must be “a member in good standing” of the hospital’s “medical staff . . . with the ability to admit a patient and to provide diagnostic and surgical services to such patient.”^[124] The Court quoted the holding in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, and found that, the State introduced no evidence “showing that patients have better outcomes when their physicians have admitting privileges” ^[125] Thus, the Court held that the Louisiana statute “place[d] a substantial obstacle in the path of a large fraction of those women seeking an abortion.”^[126]

Here, the Texas statute prevents abortions after cardiac activity is detected in an embryo, which usually occurs after about six weeks of pregnancy.^[127] The Texas legislature claims that according to contemporary medical research, “[a] fetal heartbeat has become a key medical predictor that an unborn child will reach live birth.”^[128] However, the cardiac activity detected on an ultrasound is not the actual heartbeat of the fetus. In an article published by the New York Times, Dr. Jennifer Villavicencio, lead for equity transformation at the American College of Obstetricians and Gynecologists stated, “it results from electrical activity, but the valves of the heart have not yet formed. And the sound does not indicate the pregnancy is viable.”^[129] The six-week ban imposes an undue burden on a Texas woman seeking an abortion because, as Dr. Villavicencio explained, “It is extremely possible and very common for people to get to the six-week mark and not know they are pregnant.”^[130]

According to an article published by National Public Radio (NPR), since the Texas law went into effect, many Texas abortion providers “shut down all abortion services or have adhered to the strict limit.”^[131] Amy Hagstrom Miller, the CEO and founder of Whole Woman’s Health, told reporters that her staff had been living with the fear of being sued.^[132] The statute has caused many Texas abortion providers to stop performing abortions all together, as Hagstrom Miller explained that, “Many of our physicians have opted out of providing care while SB 8 is in effect—it being just too risky for them to do so.”^[133] Like in Whole Women’s Health, the closure of so many abortion clinics in the state of Texas places a substantial obstacle in the path of women seeking an abortion.^[134]

Also, like in Whole Women’s Health and June Med. Servs. L.L.C, the state has shown no evidence that a patient would have a better outcome by banning abortion after six-weeks.^[135] In fact, women would have a worse outcome, as Dr. Villavicencio stated that forcing abortion patients to “find out about a pregnancy and make a decision about how to manage it in a short period of time is antithetical to ethical care.”^[136] Therefore, the new Texas statute is unconstitutional under the Due Process Clause of the Fourteenth Amendment because the statute’s effect places a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”^[137]

B. Will the Court Overturn Roe v. Wade?

Recently, the state of Mississippi imposed a fifteen-week ban on abortion.^[138] The United States District Court for the Southern District of Mississippi and the United States Court of Appeals for the Fifth Circuit both held that the law is an unconstitutional ban on pre-viability abortions.^[139] The United States Supreme Court is set to hear oral argument in December 1, 2021.^[140] After the U.S Supreme Court recently refused to grant injunctive relief to enjoin defendants from enforcing the Texas statute that imposes a six-week ban on abortion, many are concerned that the Court may overturn Roe v. Wade.

In 2020, in a 5-4 decision, the Supreme Court in June Med. Servs. L.L.C. v. Russo, reaffirmed Roe v. Wade by holding that a restrictive Louisiana abortion statute was unconstitutional because it placed an undue burden on women seeking an abortion.^[141] The opinion was delivered by Justice Breyer, in which Justices Ginsburg, Sotomayor, and Kagan joined, while Chief Justice Roberts delivered a concurrence.^[142] Justices Thomas, Alito, Gorsuch, and Kavanaugh dissented.^[143]

Justice Thomas made it expressly clear that he seeks to overturn Roe v. Wade. In his dissent, he stated, “the Constitution does not constrain the States’ ability to regulate or even prohibit abortion.”^[144] Thomas critiqued the holding in Roe by stating, “the idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical.”^[145] Thomas found that a woman’s right to an abortion is based “an amorphous, unwritten right to privacy, which it grounded in the ‘legal fiction’ of substantive due process.”^[146] Thomas’s biggest complaint with Roe is that there is no text in the Fourteenth Amendment to support the right to an abortion.^[147] Lastly, Thomas stated, "the putative right to an abortion “is a creation that should be undone.”^[148] Thomas is the only republican appointed justice who has expressly stated that he would vote to overturn Roe v. Wade.

Justice Alito dissented by reasoning that the Louisiana statute did not impose an undue burden because there was ample evidence in the record to show that requiring admitting privileges has health and safety benefits.^[149] Alito also dissented by finding that the plaintiffs failed to prove that the Texas statute imposed an undue burden.^[150] Justice Alito reasoned that petitioners made little effort to show why the Texas abortion clinics closed and also failed to provide any evidence of the actual capacity of the facilities that would be available to perform abortions in compliance with the Texas law.^[151] Most recently, Alito defended the Court’s decision to not enjoin defendants from enforcing Texas’ six-week abortion ban statute that by telling reporters to “[p]ut aside the false and inflammatory claim that we nullified Roe v. Wade. We did no such thing.”^[152] According to an article published by NPR, while Alito was working as a Justice Department lawyer in 1985, he wrote in a memo that the government “should make clear that we disagree with Roe v. Wade.”^[153]

Justice Gorsuch dissented by reasoning that more deference should have been given to the Louisiana legislature’s finding that requiring abortion providers to hold admitting privileges at a hospital within thirty miles of the clinic where they perform abortions would serve the public interest by protecting women’s health and safety.^[154] Gorsuch explained that Roe v. Wade was not the issue in this case, but that the real issue was the Court’s “willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.”^[155] Gorsuch implied that the majority’s decision was the result of political pressure by stating, “Today, in a highly politicized and contentious arena, we prove unwilling, or perhaps unable, to resist that temptation.”^[156] In his confirmation hearing, Gorsuch stated he would “have walked out the door” had President Donald Trump asked him to overturn the ruling of Roe v. Wade.^[157]

Justice Kavanaugh dissented by reasoning that the factual record did not adequately demonstrate that certain doctors could not obtain admitting privileges or that Louisiana abortion clinics would close as a result of the admitting-privileges law.^[158] Kavanaugh believed the case should be have been remanded for a new trial and additional factfinding.^[159] In an article published by CNN, Kavanaugh, during his Senate confirmation hearing, “declined invitations to promise he would not vote to reverse Roe, saying it would violate judicial norms to promise a vote on any particular case.”^[160]

At the time June Med. Servs. L.L.C. v. Russo was decided, Justice Ginsburg was still a sitting justice on the Supreme Court. After Ginsburg’s passing, President Trump nominated, and the Senate confirmed, Justice Barrett to the Supreme Court.^[161] An article published by the New York Times stated that Barrett signed a statement in a 2006 newspaper advertisement opposing abortion.^[162] The statement Barrett endorsed stated, “We, the following citizens of Michiana, oppose abortion on demand and defend the right to life from fertilization to natural death” and “it’s time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.”^[163] Barrett is the third Supreme Court Justice appointed to the Supreme Court by Donald Trump, which makes her the sixth justice out of nine to be appointed by a conservative president.

In an article published by the New York Times, in January 2020, President Trump told a crowd of religious-school groups and anti-abortion activists that, “Unborn children have never had a stronger defender in the White House.”^[164] So, is it all political? Will the conservative Supreme Court majority simply fall into political party lines and overturn Roe v. Wade? In an article published by the Atlantic, author Adam Stewer stated that Barrett is offended by those who question the impartiality of the Supreme Court.^[165] At a recent event at the University of Louisville’s McConnell Center, Barrett announced, “[t]his Court is not comprised of a bunch of partisan hacks,” and “[j]udicial philosophies are not the same as political parties.”^[166]

Recently, in taking questions after his speech at the University of Notre Dame, Thomas was asked what the biggest misperception of the Court was, and he replied, “they think we make policy.”^[167] Thomas elaborated on his answer by stating, “I think the media makes it sound as though you are just always going right to your personal preference. So, they think you’re anti-abortion or something personally, they think that’s the way you’ll always come out.”^[168] Thomas explained that when people “think of you like a politician” it creates a problem and could jeopardize faith in the judiciary.^[169]

In an interview with CNN news host Fareed Zakaria, Justice Breyer insisted that, “the court is driven not by political considerations, but by judicial philosophy.”^[170] Breyer explained, “There are many jurisprudential differences,” and “It isn’t really right to say that it’s political in the ordinary sense of politics.”^[171] In an article published by CNN, author Ariane de Vogue paraphrases Breyer’s response by writing, “he expressed concern about the possible erosion of public confidence in the court’s opinions and criticized the practice of referring to justices by the party of the president who appointed them instead of by their jurisprudential differences.”^[172] Breyer stated that the justices who sit on the Supreme Court are not composed of “junior varsity politicians.”^[173]

It is unclear whether the Supreme Court will uphold Roe v. Wade in deciding the constitutionality of Mississippi’s fifteen-week ban on abortion. Regardless of what Donald Trump wanted the Justices to accomplish when he appointed them, a Supreme Court Justice should remain impartial and unbiased to political motives. With the recent public appearances of both conservative and liberal justices explaining that the Court is not composed of “partisan hacks” and “junior politicians,” it appears that the justices are trying to distance themselves from appearing political, which may be a sign that they may not vote to overturn Roe v. Wade. However, politics aside, the justices could easily make the textualist legal argument, just as Justice Thomas did, and find that there is no text in the Fourteenth Amendment to support a woman’s right to an abortion. Whether the Court will uphold or overturn Roe v. Wade will be decided in the upcoming Mississippi abortion case, which is set for oral argument on December 1, 2021.

V. Recent Lawsuits Filed Relating to Texas’ Six-Week Abortion Ban

Shortly after the Supreme Court’s decision to not enjoin defendants from enforcing S.B. 8, the U.S. Justice Department sued the state of Texas and claimed that the new abortion law was unconstitutional.^[174] The Justice Department asked the United States District Court for the Western District of Texas, Austin Division, for a preliminary injunction to stop enforcement of the new abortion restriction. Judge Robert Pitman granted the Justice Department’s motion and stated, “[f]rom the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.”^[175]

Many have seen this lawsuit as a political move from President Joe Biden to show his supporters that he will fight women’s right to an abortion. Biden voiced his concern on the Supreme Court’s ruling by stating that the new Texas law, “unleashes constitutional chaos” and that “complete strangers will now be empowered to inject themselves in the most private and personal health decisions faced by women.”^[176] However, shortly after the injunction was granted, the United States Court of Appeals for the Fifth Circuit stayed the district court’s ruling and stated, "the emergency motions to stay the preliminary injunction pending appeal are granted for the reasons stated in Whole Woman’s Health v. Jackson, 13 F.4th 434 (5th Cir. 2021), and Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021).^[177] It is unclear whether the Supreme Court will hear the case.

According to an article published on September 20, 2021 in the New York Times, the first lawsuit has been filed by a private citizen to enforce the Texas Abortion law.^[178] A man from Arkansas filed the first private civil enforcement action against an abortion provider who claimed to perform an abortion after the law took effect on September 1, 2021.^[179] Author J. David Goodman stated in the article that the plaintiff “had filed the lawsuit against a Texas doctor, who publicly wrote about performing an abortion, to test the provisions of the law.”^[180] The Arkansas man, Oscar Stilly, stated in an interview, “I’m not pro-life,” and “The thing that I’m trying to vindicate here is the law. We pride ourselves on being a nation of laws. What’s the law?”^[181] That question is one that the Supreme Court will have to answer, as this recent lawsuit may be just enough for Abortion Provider Plaintiffs to have standing to sue in order to enjoin private individuals like Stilly from enforcing these kinds of laws.

Conclusion

Texas Senate Bill 8 creates both procedural and substantive issues in the law. The sovereign immunity issues of whether a plaintiff can enjoin a state judge from enforcing a law and the standing issues of trying to point to a specific private citizen who will enforce the law should be resolved soon. Once abortion providers are sued and private citizens like Stilly enforce the law, then abortion providers will have standing to sue on the merits of the constitutionality of Senate Bill 8. However, the danger of laws like S.B. 8 should encourage the Supreme Court to create a new rule for pre-enforcement challenges, so that U.S. citizens will not suffer a depravation of their constitutional rights. That rule should provide that if a state legislature (1) passes an unconstitutional law and (2) the power to enforce said law is delegated to a non-state actor, then the Court should grant an injunction to prevent the law from being enforced.

Based on current Supreme Court precedent, the Texas abortion law is clearly unconstitutional as it seeks to restrict a woman’s right to choose before viability. However, it is unclear that the Supreme Court will uphold Roe v. Wade. Based on recent interviews with multiple justices, it appears that the Court does not want the judicial branch to appear political. However, the Court could easily find that the plain language of the Fourteenth Amendment does not provide the right to an abortion. Whether the Court will uphold or overturn Roe v. Wade will be decided in the upcoming Mississippi abortion case which is set for oral argument on December 1, 2021. In the meantime, Texas citizens must wait until they can bring a procedurally proper suit before any court will strike down the Texas abortion law as unconstitutional.

VI. Epilogue

On December 1^st, 2021, the U.S Supreme Court listened to oral arguments in the case of Dobbs v. Jackson Women’s Health Organization. During oral argument, Justice Breyer stated that “feelings run high” and “it is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure.”^[182] Breyer was referring to Roe v. Wade and Planned Parenthood v. Casey. Justice Sotomayor was quick to bring up the political aspect of why the state of Mississippi was attempting to enforce this new law as she stated, “[n]ow the sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices.”^[183] Justice Barret focused many of her questions on safe haven laws as she stated, “Why don’t the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly.”^[184] The “problem” Justice Barret was referring to are the “consequences of parenting and the obligations of motherhood that flow from pregnancy.”^[185] Justice Thomas focused his questions on a textualist argument by asking, “If I were to ask you what constitutional right protects the right to abortion, is it privacy? Is it autonomy? What would it be?”^[186] The case has been submitted and everyone now anxiously awaits for the Court to issue an opinion.