US President Joe Biden has slammed it by saying that it “unleashes unconstitutional chaos”, and a dissenting US Supreme Court (SC) judge said that the majority of her colleagues had buried “their heads in the sand”. The move by the top court in America to not strike down a law passed by the southern US state of Texas that severely limits the ability of women to seek abortion has now reignited the debate on women’s reproductive choices. Given that the US SC has a conservative majority, activists say that this decision could pave the way for more curbs to be placed against abortions and undo decades of activism that has won women more rights over their bodies.
What Does The Texan Law Do?
In May this year, Texas adopted a law that prohibits abortion once heartbeat can be detected in the foetus, which happens normally in the sixth week of pregnancy. Activists say it represents a threshold for banning abortions where most women do not even realise that they are pregnant. In fact, reports said that more than four out of every five abortions done in Texas happened after the sixth week of pregnancy.
Known variously as the SB Act (Senate Bill), Heartbeat Act, etc. the law goes against precedent created by the US Supreme Court itself that say that abortion is permitted prior to foetal viability, which happens usually between 22 and 24 weeks of pregnancy.
Activists say that more than the law itself — which has raised eyebrows for how it is designed to skirt around judicial remedies available to those who will be adversely affected by it — it is the way in which the US SC’s 5-4 majority allowed it to remain in place that represents challenges to come for those fighting for women’s reproductive rights.
What Has The US Supreme Court Said?
Hearing petitioners who wanted the law to be struck down as being violative of rights already guaranteed to women, the US SC in a majority 5:4 ruling decided to allow it to stand, deeming that the grounds had not been triggered that would require the court to look into the constitutionality of the law.
In an unsigned opinion, the SC acknowledged that though the petitioners had raised “serious questions regarding the constitutionality of the Texas law”, their appeal had not met the criteria for the court to take up the procedural questions at this stage. The majority verdict referred to the “complex” and “novel” issues involved in the case and clarified that the “order is not based on any conclusion about the constitutionality of Texas’s law”. It further stated that while it had refused to stay it, the SC decision “in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts”.
But it is the “procedural” province where the Texas law represents a tricky proposition for abortion activists who would choose to challenge it.
Why Is The Texan Law Being Seen As Setting A Problematic Precedent?
Any challenge to a law in the US can be made not against the government itself but an official in charge of implementing it or overseeing its implementation. Explaining the position, an article in Vox says, “The ordinary rule is that when someone sues a state in order to block a state law, they cannot sue the state directly. States benefit from a doctrine known as “sovereign immunity,” which typically prevents lawsuits against the state itself.”
But the Texas law beats that requirment by mandating no state official for the implementing the SB8 law. Instead, it lays down that any person residing in the state can bring a case against any person or organisation that enables an abortion after six weeks. That paves the way for an anti-abortion vigilante to come up, so to speak as the law does not require that the person bringing such a case should be connected in any way to the person seeking or those providing the abortion.
After such a case is brought, if the courts find the accused guilty of enabling abortion after six weeks, the plaintiff can be “entitled to at least $10,000 in damages, and the law is structured to make it especially costly for clinics that are targeted with an enforcement action”, says CNN. Further, even if the clinic or abortion provider wins the suit, it cannot recoup legal fees from the adversary.
Mandating the common public to don the enforcement role for the anti-abortion law and the failure on part of the Supreme Court to strike down such a law, experts say, could see other US states also come up with similar laws. To be sure, there is every chance that such laws would be challenged if any abortion provider is penalised, but by cleverly bypassing specific stipulations, it just makes any such challenge difficult.
Does The US Have No Law On Abortions?
According to US-based advocacy group Centre for Reproductive Rights (CRR), “although there is a well-established constitutional right to abortion in the US, many states significantly restrict access through, for example, regulations targeting abortion providers and mandatory delays”. For example, while some states allow abortion on a test of ‘viability’, others have deadlines ranging from 20-24 weeks for permitting the procedure. CNN notes that some states that had sought a six-week deadline had been prevented by the US SC from bringing in such a law.
Even so, CRR notes that “some states are passing increasingly restrictive bans, including pre-viability bans, which are the subject of ongoing litigation and most of which have been enjoined by the courts”.
The Texas law has been upheld by the US SC at a time of grave challenges to abortion rights in the country and two years before the 50th anniversary of its famous Roe vs Wade verdict that allowed women in the US to opt for an abortion if they wanted to. The reason why activists are worried about attempts to undercut, or downright roll back, abortion rights is due mainly to the conservative majority in the nine-member US SC.
Six SC judges, including three appointed by Biden’s predecessor Donald Trump, are seen as belonging to the conservative camp and it is assumed that they will be amenable to legal challenges to abortion laws, including the Roe vs Wade, which is under review in a case to be heard in 2022. The three Trump appointees all voted in favour of upholding the Texas law although the US SC Chief Justice John Roberts, another conservative, sided with the three liberal-leaning judges who dissented against the ruling.
One of them, Justice Sonia Sotomayor, wrote in her dissenting judgment that, “presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand… Taken together, the Act is a breathtaking act of defiance — of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.”
How Many Countries Ban Abortions Totally?
According to CRR, 90 million — that is, 5 per cent of all women of reproductive age live in countries that “prohibit abortion altogether”. That means women in these countries can’t access abortion at all, including when her life or health is at risk. There are 24 such countries globally, CRR said, like Egypt, the Philippines, etc.
There are 42 countries that permit abortion when the woman’s life is at risk. These countries are home to 360 million, or 22 per cent, of women of reproductive age. Indians would remember the 2012 death of Indian-origin dentist Savita Halappanavar in Ireland after doctors in the country denied her an abortion given the strict rules that prevailed then in the country. Halappanavar’s death galvanised activists and leaders in the country to come up with amendments to abortion laws.
India had enacted the Medical Termination of Pregnancy (MTP) Act in 1971, which allows abortion under various circumstances. CRR places India in the category of countries that allow abortions on “broad social or economic grounds”, which it says have laws that “are generally interpreted liberally to permit abortion under a broad range of circumstances”.
CRR says that there are also 72 countries that allow abortion on request, placing a gestational limit — commonly set at 12 weeks — for seeking abortion.