SCOTUS refusal to review Texas abortion ban should not lead to hasty conclusions

The US Supreme Court’s decision not to consider an urgent application by pro-abortionists to prevent a new Texas statute called the “Heartbeat Act” from entering into force may have come as a surprise to some, but it is based on sound legal reasoning. At the same time, this does not mean that the statute could not be declared unconstitutional on another occasion. The Court has, in actual fact, made no decision as to the constitutionality of the new law.

What is the law about and what makes it so peculiar? The answer to the first question is simple: the law prohibits abortion as from the moment where the heartbeat of the fetus can be heard, which is usually around the 6th week of pregnancy. This results in a law that – rather than providing for a “near total ban” as some leftist media have squealed –  in fact allows for abortion “on demand”, albeit with a very short period. (For comparison, in many European Countries abortion also is possible “on demand”, but up to the 12th or 14th week of pregnancy, or even later…) As such, the measure is certainly a step in the right direction.

The peculiarity of the new law is that it explicitly does not charge any state authority with its enforcement, but instead invites any person who wants to assume that role to file civil actions against whoever contravenes it. This – to put it cautiously – is a rather unusual way of enforcing abortion bans. The normal way would be to regulate abortion, which after all is a form of homicide, in the context of criminal law, and hence entrust the enforcement to public prosecutors and criminal judges.

The reason for the unusual approach on enforcement is to make legal challenges of the law more difficult to construe, – and the SCOTUS decision shows that this approach is working as intended. The reason is a peculiarity in US procedural laws: the legal challenge must be directed not against the law in abstracto, but against the person enforcing it (or at least the person entrusted with its enforcement, e.g. the state attorney or the attorney general). If the enforcement is not entrusted to any particular person, then there is – at least at this stage – nobody who could be named as a defendant. This, however, will change, when there is a concrete case where someone will actually bring a legal action against an abortionist on the basis of this law. The constitutionality review has thus only been postponed, not forever excluded.

The 5-4 majority decision says as much:

In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

Meanwhile liberal Justices Sotomayor, Kagan and Breyer are whining that the Court has failed to act despite the apparent unconstitutionality of the new statute. 

Is the Heartbeat Act unconstitutional under the US Constitution? Well, yes, it most certainly is if the “Roe v. Wade” is used as the yardstick by which constitutionality is measured. But there is a good chance that “Roe, which back in 1973 fabricated a spurious “constitutional right to abortion” will soon be overturned, so that yardstick may become irrelevant. Is the outsourcing of enforcement to private citizens unconstitutional? That is certainly a more interesting question, and there could be good arguments to say it is. But if “Roe” falls, the leaw could be amended to make use of more traditional paths of enforcement.

So, overall it seems this is a good day for the pro-life cause.

In any case, just as a little food for thought for frustrated libs, the Texas Heartbeat Act certainly has an infinitely greater legitimacy than Roe v. Wade, given that the first at least was adopted by a democratically elected legislative assembly, whereas the fist was the result of a wilful misuse of power by seven unelected Supreme Court Justices.