On Sept. 1, the Texas heartbeat bill became law, the first time a “heartbeat bill” has become enforceable law in any state. The Supreme Court’s decision declining to enter emergency relief against the law even prompted a direct condemnation from President Joe Biden, who called the decision “an unprecedented assault” on Roe v. Wade.
But the situation is much more complicated—and less dramatic—than what is being portrayed by the president and the corporate media.
What is the Texas Heartbeat Law?
On May 19, 2021, Gov. Greg Abbott signed the Texas Heartbeat Act, which prohibits abortion after a fetal heartbeat is detected, except in cases of medical emergency.
The Texas Heartbeat Act is unique among abortion laws in that it does not impose criminal sanctions or administrative penalties on those who violate the statute, and it specifically prohibits state officials from enforcing the law. Instead, the Heartbeat Act authorizes private civil lawsuits to be brought against those who violate the law, and provides that these private citizen-enforcement suits are the sole means of enforcing the statutory prohibition on post-heartbeat abortions.
How do the Heartbeat Law’s private-enforcement lawsuits work?
The Heartbeat Law allows suits to be brought by any person with evidence an illegal abortion has been performed, but merely bringing a suit does not entitle that person to receive civil penalties or other relief. Normal rules of civil procedure and Texas precedent apply in terms of the standard of proof involved, confidentiality, and the way the cases proceed in court.
The Heartbeat Law prohibits suits from being brought against women who receive abortions, nor may a suit be brought by someone who impregnated the abortion patient through rape, sexual assault, incest, or other criminal act. The Heartbeat Law also provides that abortion providers have a defense if they can show that awarding relief would be an “undue burden” for a woman or group of women seeking an abortion, which is the legal standard given by the Supreme Court in Planned Parenthood v. Casey.
How did the case get to the U.S. Supreme Court?
The Texas Heartbeat Act was scheduled to take effect on Sept. 1, 2021. On July 13, 2021—nearly two months after Abbott signed the bill into law—a group of abortion facilities, doctors, and associated organizations filed a federal lawsuit challenging the law in the U.S. District Court for the Western District of Texas, located in Austin.
Because the law did not allow for enforcement by government officials, the abortion plaintiffs instead tried to sue judicial officials to prevent the private-enforcement suits from being filed or considered, which is unusual. The plaintiffs sued a state district judge in Smith County, Texas as a defendant class representative of every non-federal judge in Texas. They also sued the clerk for the district court of Smith County as a defendant class representative of every Texas court clerk.
The abortion plaintiffs also sued the Texas attorney general and several state agency officials, as well as Mark Lee Dickson, a pro-life activist. The plaintiffs waited until Aug. 7, 2021, to file a motion for preliminary injunctive relief.
After a flurry of briefing, including on significant jurisdictional objections raised by the defendants, the parties were preparing for the preliminary injunction hearing, which was scheduled for August 30, 2021. On August 25, 2021, the federal district judge overruled the defendants’ jurisdictional objections. (Courts are supposed to make sure they have jurisdiction—authority to hear a case—before proceeding further.)
Established law allows for an immediate appeal if a governmental entity is denied immunity from suit, so that night, the defendants appealed to the U.S. Court of Appeals for the Fifth Circuit. The law also provides that the district court no longer has jurisdiction after this happens, so the defendants asked the district court to enter a stay of proceedings while the case proceeded on appeal.
The district judge granted that request the next day, but only for the governmental defendants. Dickson, the individual defendant, asked the Fifth Circuit to stay the proceedings against him as well, since he raised some of the same jurisdictional objections that would be at issue in the governmental defendants’ appeal.
On Aug. 27, the Fifth Circuit issued a temporary administrative stay of proceedings as to Dickson, vacating the preliminary injunction hearing set for Aug.30 (which would have proceeded against Dickson only, pursuant to the district court’s order). That temporary stay allows the court more time to consider the motion to stay as to the individual defendant.
The abortion plaintiffs asked the Fifth Circuit to lift the stay and dismiss Dickson’s appeal. The Fifth Circuit denied the motion to lift the stay and is still considering the motion to dismiss along with Dickson’s stay motion.
The Fifth Circuit’s denial of the abortion plaintiffs’ request to lift the stay prompted them to seek emergency relief from the U.S. Supreme Court on the afternoon of August 30, 2021.
What happened at the U.S. Supreme Court?
The abortion plaintiffs asked the Supreme Court to enter an injunction, lift the stay in the district court, or (oddly) vacate the district court’s order in their favor overruling the defendants’ jurisdictional objections so an injunction hearing could proceed in district court. The Supreme Court ordered the defendants to file a response in 24 hours, by 5 p.m. on Aug. 31.
The Heartbeat Act went into effect at midnight on Sept. 1, 2021. Late that night, the Supreme Court issued its opinion. Five of the justices (Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) agreed that relief should be denied because the plaintiffs failed to carry their burden.
It was unclear whether the Supreme Court could grant the relief the plaintiffs requested because of “complex and novel” procedural issues. Chief Justice John Roberts, joined by Justices Stephen Breyer and Elena Kagan, argued that while the defendants “may be correct” about the procedural issues, the Supreme Court should have acted to stop the law from going into effect so the courts could consider the complicated procedural issues.
It is unclear exactly how this would have been accomplished. The chief justice mentioned enjoining the defendants, but since no classes have been certified, that means any injunctive relief would have only barred one individual (out of millions), one court clerk (out of hundreds), and one judge (out of hundreds) from filing, docketing, or considering private enforcement cases brought under the Heartbeat Law.
In other words, the plaintiffs would still have been subject to lawsuits in every other Texas county brought by virtually anyone else in the state, which was the harm they complained of. Thus, the law would not have been “blocked,” even if a majority of the Supreme Court had agreed to grant this relief.
Incidentally, a common misconception is that courts can “block” or erase bad laws with their rulings. But courts can only prevent enforcement of laws, which is why it was impossible for the Supreme Court to grant relief that would have prevented the potential harm the plaintiffs were complaining about.
What does the Supreme Court’s ruling mean, and what happens now?
The Supreme Court did not overrule Roe v. Wade, nor did it make a determination on the merits of the Heartbeat Law. All it did was deny the extraordinary emergency relief the abortion plaintiffs sought, which had the secondary effect of allowing the law to go into effect on Sept. 1 as scheduled.
The case will now return to the Fifth Circuit, where the court will consider the jurisdictional issues raised by the defendants and decide whether the individual defendant can stay in the Fifth Circuit for the appeal or return to the trial court. The Supreme Court also acknowledged that the plaintiffs could raise their constitutional challenges in Texas courts, which they did on Sept. 3 when Planned Parenthood sued in state court in Austin.
Thus, the constitutional challenges to the Heartbeat Law itself are still pending and may not be resolved for some time. In the meantime, the law remains in effect.