Suppression of Reproductive Rights in Texas
The Heartbeat Act, 2021,^1 which has been called the strictest abortion law in the United States of America, came into effect in Texas on September 1, 2021. Except in cases of medical emergencies, the law bans abortion if foetal cardiac activity can be detected, which is around six weeks of pregnancy. It does not provide any exception if the pregnancy results out of rape, sexual assault or incest. Anyone who performs, induces or abets the abortion, or intends to perform, induce or abet it, can be sued. The law will be enforced not by the government, but by private citizens who may or may not be harmed by the termination of pregnancy and can sue anytime within four years of the abortion. A plaintiff who wins will be awarded $10,000 along with the attorney fees and other costs to bring the suit.
The Act will limit access to abortion to a great extent since around 85-90% of abortion seekers in Texas are at least six weeks into the pregnancy.^2 Pregnancies are usually detectable after four weeks, as they are measured from the last menstrual cycle, leaving only two weeks for women to seek abortion. It will become especially difficult for women belonging to lower income groups who cannot procure money to cover the costs in such short time, illegal immigrants who cannot travel to other States and teenagers who need to get their parents’ permission or go through the process of judicial bypass^3 for obtaining an abortion. Such harsh restrictions could drive women to resort to unsafe abortions, which are a leading cause of maternal deaths.
^4The constitutional right of women to have abortions was recognised by the Supreme Court in the landmark judgment of Roe v. Wade.^5 In this case, the Court laid down that the right to abortion was protected by the constitutional right to privacy, which is implicit in the Due Process Clause of the Fourteenth Amendment of the US Constitution.^6 The Court also stated that even though the right to privacy is not absolute and the State could assert its legitimate interests,^7 in the first trimester the decision regarding pregnancy solely rested on the woman, in the second trimester the State could regulate abortion to a reasonable extent and in the third trimester it could prohibit the same.^8
In Planned Parenthood v. Casey,^9 the Supreme Court once again upheld women’s right to abortion as enshrined in the constitutional right to liberty and privacy.^10 But rather than conforming to the trimester-based approach for regulation of abortions by the State, it relied on viability of the foetus and created a new standard of ‘undue burden’. A law imposes an undue burden if it presents a substantial obstacle in women’s path to seek abortion of a non-viable foetus, and would be regarded as invalid.^11
In the case of Whole Woman’s Health v. Hellerstedt,^12 the Supreme Court dealt with the abortion laws of Texas, which due to certain requirements led to closure of a number of abortion clinics in Texas. The Court held that fewer clinics meant longer waiting time, fewer doctors and overcrowding. The Court ruled that the relevant provisions placed an undue burden on women’s right to seek abortion and thus, declared them unconstitutional.^13
The Heartbeat Act, by banning abortion after six weeks of pregnancy, places a substantial obstacle in women’s path to exercise their right to abortion, interferes with their right to liberty and privacy, and thus is unconstitutional.
Over the years, several international human rights mechanisms have recognised the importance of access to safe abortion services. The U.S. has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights, and the treaty bodies on both have shown their concern over human rights violations of women due to restrictive abortion laws. The Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (2016)^14 highlighted that, “Highly restrictive abortion laws that prohibit abortions even in cases of incest, rape or foetal impairment or to safeguard the life or health of the woman violate women’s right to be free from torture and ill-treatment.” The Committee against Torture has observed that prohibition of abortion in cases where pregnancy is a direct result of crime or gender-based violence like rape, incest etc. can cause women long lasting psychological problems and serious traumatic stress.^15
The Human Rights Committee in its General Comment No. 36^16 has asserted that access to safe, legal abortions (especially in cases where pregnancy is a result of rape or incest) is necessary for realisation of women’s right to life. It also observed in the case of Mellet v. Ireland^17 that criminalisation of abortion and its prohibition are contrary to the human rights guaranteed to women.
The Heartbeat Act prevents women from exercising their rights guaranteed under these international treaties. Several conservative states in US have earlier tried to bring restrictive abortion laws, but have been unsuccessful as the laws have been prohibited from going into effect for being unconstitutional. The Supreme Court refused to block this law which is plainly unconstitutional because of the unusual way in which it is framed.
The act bans state officials from enforcing it, as private individuals have been charged with this responsibility. This is the aspect that has insulated this act from the federal court review.
That’s because as per the doctrine of sovereign immunity, the government cannot be sued without its consent.^18 This protects federal and state governments from being sued for their legislative function. One exception to this doctrine that was enumerated in the case known as Ex parte Young,^19 is that the suit against the State officials who are in charge of enforcing the law is not barred. But the present law does not have any such official enforcing the law, thus making it difficult to pose a challenge to the constitutionality of the act until someone brings a suit based on the act.
The Supreme Court on November 1, 2021 heard oral arguments in two cases challenging the Heartbeat Act^20 however, neither addressed the constitutionality of the Act, both address its procedural issues. The Court is yet to give its ruling on the two cases. If the Supreme Court lets this enforcement mechanism stand, it won’t be long before other conservative states follow suit.
Kanika Chugh is an undergraduate law student at the National Law University and Judicial Academy, Assam (NLUJAA), India.
1 The Heartbeat Act, 2021, TX SB8.
2 Chloe Atkins, Texas’ new abortion law could have huge consequences. Here's what comes next., NBC NEWS, September 2, 2021, https://www.nbcnews.com/politics/politics-news/texas-abortion-law-explained-what-next-n1278312.
3 Michelle Goldberg, Texas’ Abortion Law Traps Desperate Teenagers, THE NEW YORK TIMES, September 13, 2021, https://www.nytimes.com/2021/09/13/opinion/abortion-texas-teens.html.
4 Susheela Singh et al., Abortion Worldwide 2017: Uneven Progress and Unequal Access, March 2018 Report, GUTTMACHER INSTITUTE, https://www.guttmacher.org/report/abortion-worldwide-2017.
5 Roe v. Wade, 410 U.S. 113 (1973).
6 ibid at 153, 154.
7 ibid at 154.
8 ibid at 163, 164
9 Planned Parenthood v. Casey, 505 U.S. 833 (1992).
10 ibid at 846.
11 ibid at 877.
12 Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016).
13 ibid at 26, 36.
14 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/31/57,https://undocs.org/A/HRC/31/57.
15 UN Committee Against Torture (CAT), Concluding observations of the Committee against Torture: Nicaragua, 10 June 2009, CAT/C/NIC/CO/1, https://www.refworld.org/docid/4a85632bd.html.
16 Human Rights Committee, General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, CCPR/C/GC/36, https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf/.
17 Mellet v. Ireland, CCPR/C/116/D/2324/2013.
18 Legal Information Institute, Sovereign Immunity, https://www.law.cornell.edu/wex/sovereign_immunity.
19 Ex parte Young, 209 U.S. 123 (1908).
20 Timothy S. Jost et al., Supreme Court Agrees to Hear Challenges to Texas Abortion Law, THE COMMONWEALTH FUND (October 25, 2021), https://www.commonwealthfund.org/blog/2021/litigation-texas-senate-bill-8.