Texas Alliance for Life, one of the state’s biggest anti-abortion advocacy groups, came out against the bill. The measure “bans abortions on non-viable (fetuses) when the heartbeat is detected, which the Supreme Court does not permit,” the group said in explaining its decision. “This law has been passed in three states and struck down in all three, Arkansas, North Dakota and Iowa. Requests by Arkansas and North Dakota to review the cases have been denied by the Supreme Court.”
Passing the law, according to the group, could actually strengthen abortion providers in Texas because of the attorneys’ fees Texas could be forced to shell out to its opponents if the state is sued over the law and loses.
Texas Wins Some, Loses Some
In their rulings, the judges who have struck down previous “heartbeat bills” have cited the standard created by the Supreme Court in its decision in Casey. Casey holds that states have an interest in regulating abortion, but they cannot create an “undue burden” on women seeking the procedure. The “undue burden” standard guided the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, the 2016 case that saw the high court overturn a Texas law that required doctors performing abortions to have admitting privileges at a hospital within 30 miles of the clinic at which they were performing the procedure. The law also would have required abortion clinics to be outfitted to the same standards as hospital surgical suites.
Although Texas’ law was struck down, it still forced dozens of clinics in the state to close during the time it was enforced as the suit against it wound its way through the courts. Fewer clinics means longer waits for appointments. Combine longer wait times with basic human anatomy, and Texas’ heartbeat bill, while not imposing criminal penalties on women seeking abortions, would have made getting an abortion in Texas essentially impossible.
“A six-week ban is an abortion ban, because most women don’t know they’re pregnant at six weeks,” says Kelly Hart, the senior director of public affairs at Planned Parenthood of Greater Texas. “You miss your period, that’s usually your first sign. Then how long do you wait before you get a test, because maybe you hope you’re late for some reason? Maybe you give it a few days or whatever. You take the test, it comes back positive. You go to your doctor, maybe, to have it confirmed. There’s a process.”
Even if a woman makes an appointment the day she realizes she might be pregnant and sees a doctor as soon as possible, she might not meet the law’s requirements.
“If this law was in place and you immediately pick up the phone to call one of us, it’s a matter of when we can fit you in. Then you have to come in for your (state-mandated) sonogram. It’s rarely a two-day wait. It’s usually because of scheduling and all that. This is just another way to do an abortion ban,” Hart says.
In addition to not wanting to pay for pro-abortion rights supporters’ next lawsuit with their attorney’s fees, Texas Alliance for Life fears the effect of negative precedent on future abortion laws in Texas and around the United States. In the eyes of the group’s special counsel Paul Benjamin Linton, Supreme Court Chief Justice John Roberts isn’t a sure vote to overturn Roe, the Supreme Court decision that legalized abortion nationwide in 1973.
“The chief justice’s opinion upholding the Affordable Care Act gives one pause, as does his (in my view) exaggerated respect for precedent (which, to some extent, may be shared by Justice Brett Kavanaugh),” Linton wrote last year. “Although the chief justice might be willing to join an opinion overruling Roe at some point, it is doubtful he would cast the decisive (fifth) vote, particularly in the absence of further erosion of Roe. In other words, if his vote were needed, it is unlikely that it would be obtained.”
Until Roe v. Wade is overturned, the group would rather ask the Supreme Court questions it hasn’t already answered in an effort to chip away at the foundations of the law.
“Ignoring the Supreme Court is not a realistic possibility and would have no benefit. Regardless of whether the Legislature or the attorney general ignores the Supreme Court (which they will not do), all abortion laws must be enforced and prosecuted by local district attorneys and county prosecutors,” Texas Alliance for Life says in its 2019 legislative guide. “All DAs and prosecutors have taken an oath of office to uphold the Constitution, as interpreted by the Supreme Court. They will not enforce any law when prohibited by the Supreme Court.”