A Heartbeat Away from Ending Abortion?

Pro-lifers across the country are elated that Texas’ “Heartbeat Act” (Senate Bill 8) went into effect yesterday, September 1. The law prohibits abortions after a baby’s heartbeat can be detected, which is usually around 6 weeks gestation. 

Although the law was passed in May, Planned Parenthood and its allies waited until mid-July to bring a lawsuit, and until August 7 to file a motion for an injunction to keep the law from going into effect.  According to the pro-abortion playbook, they are supposed to win these last minute motions, leaving the other side scrambling to get the decision overturned in a higher court.  

But the Texas abortion cabal lost, and lost again in the Fifth Circuit. Two days ago, they filed an emergency petition for review with the U.S. Supreme Court and late last night the Court DENIED their petition on procedural grounds. That means the most restrictive abortion law in the country is enforceable! 

The question is, who can enforce it? 

That is precisely the issue addressed by the Supreme Court. The Heartbeat Act explicitly prohibits any officer of the state from enforcing the Act. The Act is enforceable only by private civil action, which means an individual who knows that an abortionist is not checking for heartbeats or knowingly aborts a baby with a detectable heartbeat would have to file a lawsuit against the abortionist. If the lawsuit is successful, the abortionist must pay at least $10,000 in statutory damages for each abortion that violated the law, plus attorney’s fees. 

However, the Act itself creates a defense against such lawsuits if the abortionist can show that the damages sought by the person filing the lawsuit [i.e., the $10,000 fine] “will impose an undue burden” on women seeking abortion.  

Supreme Court Justice Samuel Alito, writing for the Court, ruled that because Planned Parenthood and its allies sued state officials, who cannot enforce the Act, and because no private individual has stated that he or she will enforce the Act, the petition for review is effectively “unripe.” In order for the Supreme Court to block enforcement of the Act, PP needed to show that it is likely to succeed on the merits of its underlying case and that it will be irreparably harmed if the Court does not intervene. PP failed to meet its burden under the law. 

For those who are curious as to whether the Supreme Court is signaling as to how it will rule in the Dobbs case which challenges Roe v. WadeJustice Alito made it clear that his eleventh hour ruling does not address any of the substantive claims regarding the constitutionality of laws restricting abortion. But the five justices who sided with him were also not swayed by the abortion providers dire predictions of the consequences if their petition was not granted. 

As for abortionists, Whole Women’s Health, which runs 4 abortion mills in Texas, maintains that its “clinics are still open and abortion is still legal,” while Planned Parenthood is referring women to a site that states “abortions are still legal through 20 weeks…though Senate Bill 8 could impose penalties on others who help you” get an abortion. However, it is our understanding that at this time, abortion mills in Texas are curtailing their surgical abortion appointments to comply with the Act. It remains to be seen how the Act will affect the availability of chemical abortion drugs. 

Life Legal will continue to monitor the Heartbeat Act. We pray for the health and safety of babies and mothers in Texas during its transition to a (mostly) abortion-free state. We pray that the Supreme Court overturns its disastrous rulings in Roe v. WadeDoe v. Bolton, and Planned Parenthood v. Casey when it takes up the Dobbs case next term.