On September 1st, 2021, Texas passed Senate Bill 8 (SB 8), preventing abortions once a fetal heartbeat is detected — which is usually around six weeks into a pregnancy. Ever since then, millions have been watching and waiting to see how this law plays out and how the Supreme Court will respond.
Texas is not the first state to pass a law like this, as twelve other states have attempted to pass six–week abortion bans; each time, the Supreme Court has intervened…until now. This time around, the Supreme Court declined to rule on an emergency request to block the bill, and SB 8 went into effect.
This piece of legislation is especially stringent, with no exceptions made for cases of rape or incest, or when the woman’s life is in danger (unless a physician “believes a medical emergency exists”). While Texas is only one state out of fifty, the repercussions of SB 8 go far beyond Texas’s borders. Its true effects will be seen over the next few months as the Supreme Court rules on this and other abortion–related cases.
What makes Texas’ law so unique, beyond the fact that it managed to evade being immediately overturned by the Supreme Court? The six–week ban is not a novel concept, but it’s extreme given how early in the developmental process the fetus is at that stage in a pregnancy — most people don’t even realize they’re pregnant by this cutoff.
From a scientific perspective, it can also be argued that the “heartbeat” detected at six weeks is not even a true heartbeat as the fetal heart is not fully developed or functioning by this point in time. Rather, there is merely an electrical impulse, which is what is detected. Thus, the fetus is pre–viability, and abortions at this stage should fall under Roe v. Wade.
SB 8 also enables private citizens to sue abortion providers and anyone else involved with abortions beyond the six–week mark, even if they’re not connected to the person seeking the abortion in question. This makes legal challenges difficult as there’s no one for abortion groups and providers to sue in return when they seek to challenge the SB 8 on grounds of unconstitutionality.
Most notably, SB 8 is in direct contradiction to Roe v. Wade, the landmark Supreme Court decision from 1973 that permits abortion before viability of the fetus, around 25 weeks. However, even beyond Roe v. Wade, there are greater concerns for the reproductive rights of millions of women across the country. From a legal perspective, SB 8 and Roe v. Wade cannot coexist — one must be overruled. Consequently, pro–life activists across the country are taking note of Texas’ situation and copying the language of the bill to implement similar pieces of legislation beyond the borders of the Lone Star State.
Although challenges are working their way through Texas’ lower courts, the Supreme Court is set to rule on SB 8 in this term. It’s entirely possible that the Court can and will rule that SB 8 is unconstitutional, but a precedent has been set that passing these types of “heartbeat bans” is possible if the legislation is presented in a specific manner.
Since the usually–conservative Chief Justice John Roberts ruled with the liberal minority in favor of the emergency blocking of SB 8, there are some indications that the SB 8 case will face intense scrutiny in the Court. But, the question remains whether any of the five other conservative justices would join Roberts and the liberal minority in rejecting SB 8 and ultimately upholding Roe v. Wade. However, the Supreme Court tends to rule along the ideologies of the majority. Given that the Supreme Court is now structured with six conservative–leaning judges compared to three liberal–leaning ones, a ruling in favor of the Texas government is also possible.
Texas is one of the first states to put forth a “heartbeat ban” since the death of former Supreme Court judge Ruth Bader Ginsburg and the appointment of conservative judge Amy Coney Barrett. The new composition of the Court contributed directly to the rejection of the emergency filing against SB 8 and will possibly contribute to the outcome in which SB 8 stands as is. The gravity of the situation is why millions of people are closely examining the Texas situation and waiting for word from the Supreme Court.
As a side note, Roe v. Wade faces further challenge as the Supreme Court is also set to rule on Mississippi’s ban at the 15–week mark, as well as a direct call to overturn the landmark ruling. As of November 29th, 2021, the Supreme Court has yet to hand down rulings in any abortion–related case on the docket for this term.
And, what of the millions of women in Texas who can no longer access abortions beyond a certain point in their pregnancies? SB 8 restricts the control women have over their own reproductive health. Texas’s six–week ban blocks at least 85% of abortions in the state and forces women to carry pregnancies to term once a “heartbeat” is detected, regardless of whether it’s safe to do so or if the woman wants to.
SB 8 also puts a strain on the resources of abortion clinics across Texas and in bordering states as well: clinics within Texas’ borders will be forced to limit their services, causing clinics outside of Texas to accommodate Texan women seeking services no longer offered within the state. For the women who can’t travel the dozens of miles to leave the state or can’t afford the costs associated with now far–away procedures, desperation may take root; this could result in a sharp increase in clandestine, dangerously unsafe abortions.
Women who are further impacted by factors like low income, race, and immigration status are among the people most affected by SB 8 as their limited resources become even more limited. If Roe v. Wade is ultimately overturned, the consequences for reproductive rights will be devastating on a national scale as the situation in Texas will become a nationwide reality.
Hopefully, as we wait on a ruling from Washington, we can consider what abortion rights in this country are worth to the millions of women who ultimately deserve to make that choice for themselves, no matter their reasons. As for now, SB 8 stands.