Supreme Court Debates Texas Abortion Law

By Jordan Williams

Vol. 82 Issue 6 December 14th 2021

On Monday, Nov. 8, the Supreme Court of the United States  began debate on a controversial Texas abortion law, Senate Bill 8. The law is the most restrictive abortion law in the country, prohibiting all abortions after six weeks of pregnancy, when a heartbeat can be observed. When the law went into effect in September, SCOTUS voted 5-4 not to challenge the law. Since then, the SB 8 has prevented thousands of abortions in the state, and Texas residents seeking abortions have been travelling across state lines to receive treatment. As a result, abortion providers of neighboring states have backlogs of Texas residents, according to the Texas Tribune.

Abortion is a constitutionally protected right by the federal government due to the precedent set in the Roe v. Wade Supreme Court case of 1971, but SB 8 effectively bypasses most constitutional protections due to its unique enforcement mechanism. Normally with laws, the state has the burden of enforcement, and constitutional protections are meant to keep the state from infringing on citizens’ constitutional rights. However, SB 8 forbids state officials from enforcing abortion restrictions and instead allows private citizens to sue one another through the court system. Private lawsuits are not beholden to the same constitutional restrictions as state officials, so SCOTUS decided that SB 8 did not need to be challenged. Under SB 8, private citizens can sue anyone getting an abortion, or abortion provider, for a minimum of $10,000 if the mother is six weeks into pregnancy. 

SCOTUS voted 5-4 not to challenge SB 8 when the law went into effect in September, but a recent lawsuit made certain judges on the Court reconsider the constitutionality of SB 8. Supreme Court justices Amy Coney Barrett and Brett Kavanaugh, two judges that originally voted against challenging the law in the 5-4 September vote, have since reconsidered their decision. Barrett and Kavanaugh said that the enforcement mechanism of SB 8 is problematic and could be used to infringe on other constitutional protections, “There’s a loophole that’s being exploited here,” said Kavanaugh. “It could be free speech rights. It could be a free exercise of religion rights. It could be Second Amendment rights, if this position is accepted here,” according to Texas Tribune. The Supreme Court began debating SB 8 on Monday, Nov. 8 but they have not released a decision as of Nov. 11.It is important to note that the Supreme Court is not debating on the constitutionality of abortion, so Roe v. Wade will not be overturned with this case. With SB 8, the Court is only questioning the constitutionality of the law’s unique enforcement mechanism. SB 8 does not challenge Roe v. Wade because the burden of enforcement is in the hands of private citizens, not the government. However, a recent Mississippi law that bans abortion after 15 weeks into pregnancy, challenges Roe v. Wade directly. The Supreme Court is expected to hear the Mississippi law on Dec. 1, according to NBC. The stakes are high with this case, as the judges will decide on whether to uphold or overturn Roe.

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