Introduction
The
Texas abortion law, which the US Supreme Court just declined to overturn and
stay, has caused quite a stir, both because of its restricted character and
because of the court’s decision to allow it to become law.
The
law has been criticised on several fronts: it prohibits abortion after six
weeks, a period during which many women are unaware that they are pregnant; it
makes no exceptions for pregnancy caused by rape or incest; and, while it
states that abortions are prohibited once the foetus’s heartbeat can be
detected, the cardiac activity detected on ultrasound by the sixth week is not
a true heartbeat. Apart from concerns about harming women’s health and
autonomy, the bill also increases the possibility of increased surveillance of
medical operations.
WHAT IS THE LAW? (TEXAS HEARTBEAT ACT)
On September 1, 2021, the United States Supreme Court declined to overturn a Texas Foetal Heartbeat Statute, thus banning abortion services in the state. SB8 was signed into law by Texas Governor Greg Abbott on May 19, 2021, with an effective date of September 1, 2021. SB8 says that, barring a medical emergency, “a physician may not knowingly conduct or induce an abortion on a pregnant woman if the physician detects a foetal heartbeat for the unborn child,” and that clinicians must look for cardiac activity before aborting the infant. The legislation effectively forbids abortion beyond 6 weeks of pregnancy, when the majority of women are unaware that they are pregnant.
The foetal heartbeat law in Texas is unusual. It allows private citizens to file civil lawsuits against anybody who “knowingly participates in behaviour that helps or abets the performance or inducement of an abortion,” regardless of whether the person was aware that the abortion was illegal. “Reimbursing the expenses of an abortion through insurance,” it says. The phrase is so wide that it may apply to anybody who counsels a woman, even a driver who drives her to an abortion facility. SB8 goes much farther, making a person liable if they simply “intend to engage in the conduct.” As a result, SB8 delegated law enforcement to private people who are compensated in the form of damages.
The United States Supreme Court held in Roe v. Wade (1973) that a woman’s right to privacy under the 14th Amendment of the United States Constitution rendered abortion permissible. The new Texas anti-abortion legislation is illegal because its aim and effect is to make it more difficult, if not impossible, for a Texas woman to exercise her Roe vs. Wade right to an abortion. It’s also ambiguous, arbitrary, overbroad, irrational, and hazardous, all of which are unlawful.
The Texas statute attempted to avoid court scrutiny by implementing the rule solely through private civil proceedings, with state personnel barred from doing so. Ex Parte Young is a pivotal Supreme Court case that permits a federal court to stop an unconstitutional statute by suing the state officer who is enforcing it. Texas tried to avoid constitutional issues by barring state enforcement, thereby shielding the state from real judicial review. The US Supreme Court permitted SB8 to take effect on September 1, 2021. The Court acknowledged “severe” constitutional issues in an unsigned 5-4 ruling, but stated the legislation “presents complicated and unique” procedural questions, so it declined to grant a stay, allowing the law to take effect. The dissenting justices saw Texas’ statute as a “scheme to shelter its law from judicial review,” and said the courts should “examine whether a state may evade accountability for its laws.” The majority’s ruling was “shocking,” according to Justice Sotomayor, who was supported by Justices Kagan and Breyer, and described Texas legislation as “flagrantly illegal,” contradicting 50 years of federal precedent.
CASE DEVELOPMENTS OF REPRODUCTIVE RIGHT IN U.S.
Roe
v. Wade
The
Court said in Roe v. Wade that a foetus is not a person but rather
“potential life,” and so does not have constitutional rights of its
own. The Court also established a framework in which a woman’s privacy right
and the state’s right to protect potential life shift: during the first
trimester of pregnancy, a woman’s privacy right is strongest, and the state may
not regulate abortion for any reason; during the second trimester, the state
may regulate abortion only to protect the woman’s health; and during the third
trimester, the state may regulate abortion only to protect the woman’s health.
Doe v. Boulton
The
Supreme Court decided in Doe v. Bolton that a woman’s right to an abortion
could not be curtailed by the state if the abortion was requested for reasons
of maternal health. The Court defined health as “all aspects important to
the patient’s well-being – physical, emotional, psychological, family, and the
woman’s age.” This medical exemption extended the right to abortion for
any cause during all three trimesters of pregnancy.
Planned Parenthood v. Danforth 428 U.S. 52 (1976)
In
this the Supreme Court struck down major portions of Missouri’s abortion law,
including those that prohibited saline injection abortions, required a married
woman to obtain her husband’s consent before having an abortion, and required
parental consent before an abortion could be performed on their minor daughter.
The court agreed in principle, but without explanation, that informed consent
was required.
City of Akron v. Akron Center for Reproductive Health 462 US 416(1983)
All
of the challenged portions of an abortion-restricting ordinance in Akron, Ohio,
were invalidated by the Supreme Court. The city could not, for example, require
minors under the age of 15 to obtain parental or judicial consent for an
abortion, require physicians to provide women with information designed to
discourage them from having abortions, impose a 24-hour waiting period after
signing the consent form, or require all second-trimester abortions to be
performed in a hospital, according to the Court.
Thornburgh v. American College of Obstetricians and Gynaecologists 476 US 747 (1986)
A
section of a Pennsylvania legislation mandating doctors to employ abortion
procedures that maximised the possibility of foetal survival, even if such
treatments raised the medical risks to the pregnant woman’s life or health, was
knocked down by the Supreme Court, among other abortion restrictions.
Webster v. Reproductive Health Services 492 U.S. 490 (1989)
The
Supreme Court maintained a Missouri law prohibiting state financing and state
employees from conducting or advising abortions, but it struck down a clause
mandating doctors to screen for foetal viability before aborting a foetus 20
weeks or older. In Webster, four justices argued that Roe v. Wade should be
reconsidered.
Rust v. Sullivan 500 U.S. 173 (1991)
The
Supreme Court maintained federal restrictions banning Title X-funded family
planning clinics from advising or directing customers to abortion facilities.
Planned Parenthood of South-eastern Pa. v. Casey 505 U.S. 833 (1992)
States
can need parental approval for a minor’s abortion (as long as judicial bypass
is available), a waiting period between requesting and receiving an abortion,
and thorough “informed consent” that includes medical information
regarding the abortion, according to the Court. The State could not force the
lady to sign a statement stating that she had given her husband, if any, prior
to the operation. Casey scrapped the trimester system in favour of pre- and
post-viability constitutionality testing. Roe was reaffirmed on the basis of
stare decisis (“let the decision stand”), to avoid the appearance that the
Court was susceptible to political pressure, and because “people had organised
their intimate relationships and made choices that define themselves… in
reliance on the availability of abortion in the event constrained.” Casey’s
“reaffirmation of Roe” was met with disapproval from four justices.
Stenberg v. Carhart (Carhart I) (2000) 530 U.S. 914.
The
ACLU submitted a friend-of-the-court brief in this case, urging the Supreme
Court to strike down Nebraska’s so-called “partial-birth
abortion” prohibition. The Court struck Nebraska’s law on two separate
grounds, sending a strong message about the importance of women’s health: the
ban’s failure to include a health exception threatened women’s health, and the
ban’s language encompassed the most common method of second-trimester abortion,
placing a substantial barrier in the path of women seeking abortions and thus
imposing an “undue burden.”
Ayotte v. Planned Parenthood of Northern New England (2006) 546 U.S. 320
The
ACLU argued this case in front of the Supreme Court on behalf of the New
Hampshire clinics and doctors who filed the lawsuit. The Supreme Court, in a
majority decision, reaffirmed its long-held concept that abortion restrictions
must contain safeguards for women’s health. The case originated as a challenge
to a New Hampshire statute that required doctors to wait 48 hours after a
parent was told before performing an abortion on a minor, but did not include a
medical emergency exception to safeguard a pregnant teenager’s health. Because
of this omission, the statute was knocked down by the lower courts. The Supreme
Court reversed the decision and remanded the case to the lower court, ordering
it to assess whether the New Hampshire legislature would have desired this
legislation to include a medical emergency exemption. Otherwise, the Court
stated that the statute should be repealed in its entirety. Regardless, the
Court ruled that the legislation must be suspended in situations when teenagers
suffer medical problems.
Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America, Inc. (Carhart II) (2007) 127 S. Ct. 1610
In
both instances, the ACLU submitted friend-of-the-court filings urging the
Supreme Court to overturn the first-ever federal restriction on abortion
procedures. The prohibition does not, however, contain an exemption to
safeguard women’s health. (Three legal challenges to the law, dubbed the
“Partial-Birth Abortion Ban Act of 2003,” were filed.) National Abortion Federation v. Gonzales,
the ACLU’s challenge, was put on hold in the United States Court of Appeals for
the Second Circuit while the Supreme Court reviewed the other two cases.) The
Supreme Court maintained the federal prohibition in a 5-4 ruling, undercutting
one of Roe v. Wade’s basic
principles: that women’s health must remain paramount. In doing so, the Court
effectively reversed its decision in Stenberg v. Carhart (Carhart I), which had
been handed down only seven years before. Justice Kennedy, writing for the
majority, recalled archaic views of women’s role in society and questioned
their decision-making abilities. Furthermore, Kennedy said that Congress might
reject a doctor’s medical judgement in the case of “medical
ambiguity,” and that the “State’s
interest in fostering respect for human life at all stages of pregnancy”
could exceed a woman’s interest in preserving her health.
Right to life under International
Conventions
Article 3 of the Universal Declaration of Human Rights, Article 6 of the International Covenant on Civil and Political Rights, and the main regional human rights instruments such as the American Convention on Human Rights 1969 Article 4, and the European Convention on Human Rights Article 2 all protect the right to life. Article 6 of the Convention on the Rights of the Child expressly protects a child’s right to life and survival, requiring member states to “guarantee to the fullest extent feasible the child’s survival and development.” The right to life should not be read too narrowly; rather, it involves nations’ duties to take proactive actions, such as reducing infant mortality. This interpretation also requires nations to adopt additional proactive steps to preserve human life, such as maternal mortality prevention and treatment, and the prevention and treatment of diseases like HIV/AIDS. Women’s deaths during pregnancy and delivery are addressed in Article 6 of the International Covenant on Civil and Political Rights, as with practises such as female infanticide, widow burning, and dowry murders.
Right
to privacy
Article 17 of the International Covenant on Civil and Political Rights, for example, states that “no one should be subjected to arbitrary or unlawful interference with his private, family, home or communications, nor to unlawful attacks on his honour and character.” The Convention on the Rights of Persons with Disabilities, Article 8 of the ECHR, and Article 11 of the ACHR all include similar requirements. The child’s freedom from “arbitrary or unlawful interference with his or her privacy, family, home, or communication” is guaranteed under Article 16 of the Convention on the Rights of the Child. Article 10 of the African Charter on the Rights and Welfare of the Child contains a comparable clause.
THE WOMEN HEALTH PROTECTION ACT
The United States House of Representatives adopted a measure on Friday that Democrats claim will preserve a person’s right to abortion. The Women’s Health Protection Act was enacted in reaction to a Texas legislation that effectively prohibits abortion beyond six weeks, when most women are unaware they are pregnant. The Supreme Court of the United States refused to stop the law from going into force, but the ruling left the door open for future challenges.
The
Women’s Health Protection Act would protect a person’s right to choose whether
to continue or end a pregnancy, as well as health care providers’ ability to
provide abortion services “prior to foetal viability” without state
restrictions, such as requiring special admitting privileges or imposing
waiting periods.
It
would also outlaw limitations on abortion after foetal viability “where,
in the treating health care provider’s good faith medical opinion, continuing
the pregnancy would pose a risk to the pregnant patient’s life or health.”
Republicans claimed that the law goes too far, restricting a state’s authority
to regulate online gambling.
After Texas passed its measure earlier this month, House Speaker Nancy Pelosi promised to bring the bill to the House floor. Pelosi said in a statement that the Texas law is “the most severe, deadly abortion restriction in half a century, and its aim is to demolish Roe v. Wade, refusing even to allow exceptions for situations of rape and incest.” This prohibition demands the codification of Roe v. Wade.
Nancy Srivastava is working as Content Associate at Jurisedge Academy.
The opinions expressed in this publication are those of the authors.
Related
Jurisedge Academy
Share post:
Introduction
The Texas abortion law, which the US Supreme Court just declined to overturn and stay, has caused quite a stir, both because of its restricted character and because of the court’s decision to allow it to become law.
The law has been criticised on several fronts: it prohibits abortion after six weeks, a period during which many women are unaware that they are pregnant; it makes no exceptions for pregnancy caused by rape or incest; and, while it states that abortions are prohibited once the foetus’s heartbeat can be detected, the cardiac activity detected on ultrasound by the sixth week is not a true heartbeat. Apart from concerns about harming women’s health and autonomy, the bill also increases the possibility of increased surveillance of medical operations.
WHAT IS THE LAW? (TEXAS HEARTBEAT ACT)
On September 1, 2021, the United States Supreme Court declined to overturn a Texas Foetal Heartbeat Statute, thus banning abortion services in the state. SB8 was signed into law by Texas Governor Greg Abbott on May 19, 2021, with an effective date of September 1, 2021. SB8 says that, barring a medical emergency, “a physician may not knowingly conduct or induce an abortion on a pregnant woman if the physician detects a foetal heartbeat for the unborn child,” and that clinicians must look for cardiac activity before aborting the infant. The legislation effectively forbids abortion beyond 6 weeks of pregnancy, when the majority of women are unaware that they are pregnant.
The foetal heartbeat law in Texas is unusual. It allows private citizens to file civil lawsuits against anybody who “knowingly participates in behaviour that helps or abets the performance or inducement of an abortion,” regardless of whether the person was aware that the abortion was illegal. “Reimbursing the expenses of an abortion through insurance,” it says. The phrase is so wide that it may apply to anybody who counsels a woman, even a driver who drives her to an abortion facility. SB8 goes much farther, making a person liable if they simply “intend to engage in the conduct.” As a result, SB8 delegated law enforcement to private people who are compensated in the form of damages.
The United States Supreme Court held in Roe v. Wade (1973) that a woman’s right to privacy under the 14th Amendment of the United States Constitution rendered abortion permissible. The new Texas anti-abortion legislation is illegal because its aim and effect is to make it more difficult, if not impossible, for a Texas woman to exercise her Roe vs. Wade right to an abortion. It’s also ambiguous, arbitrary, overbroad, irrational, and hazardous, all of which are unlawful.
The Texas statute attempted to avoid court scrutiny by implementing the rule solely through private civil proceedings, with state personnel barred from doing so. Ex Parte Young is a pivotal Supreme Court case that permits a federal court to stop an unconstitutional statute by suing the state officer who is enforcing it. Texas tried to avoid constitutional issues by barring state enforcement, thereby shielding the state from real judicial review. The US Supreme Court permitted SB8 to take effect on September 1, 2021. The Court acknowledged “severe” constitutional issues in an unsigned 5-4 ruling, but stated the legislation “presents complicated and unique” procedural questions, so it declined to grant a stay, allowing the law to take effect. The dissenting justices saw Texas’ statute as a “scheme to shelter its law from judicial review,” and said the courts should “examine whether a state may evade accountability for its laws.” The majority’s ruling was “shocking,” according to Justice Sotomayor, who was supported by Justices Kagan and Breyer, and described Texas legislation as “flagrantly illegal,” contradicting 50 years of federal precedent.
CASE DEVELOPMENTS OF REPRODUCTIVE RIGHT IN U.S.
Roe v. Wade
The Court said in Roe v. Wade that a foetus is not a person but rather “potential life,” and so does not have constitutional rights of its own. The Court also established a framework in which a woman’s privacy right and the state’s right to protect potential life shift: during the first trimester of pregnancy, a woman’s privacy right is strongest, and the state may not regulate abortion for any reason; during the second trimester, the state may regulate abortion only to protect the woman’s health; and during the third trimester, the state may regulate abortion only to protect the woman’s health.
Doe v. Boulton
The Supreme Court decided in Doe v. Bolton that a woman’s right to an abortion could not be curtailed by the state if the abortion was requested for reasons of maternal health. The Court defined health as “all aspects important to the patient’s well-being – physical, emotional, psychological, family, and the woman’s age.” This medical exemption extended the right to abortion for any cause during all three trimesters of pregnancy.
Planned Parenthood v. Danforth 428 U.S. 52 (1976)
In this the Supreme Court struck down major portions of Missouri’s abortion law, including those that prohibited saline injection abortions, required a married woman to obtain her husband’s consent before having an abortion, and required parental consent before an abortion could be performed on their minor daughter. The court agreed in principle, but without explanation, that informed consent was required.
City of Akron v. Akron Center for Reproductive Health 462 US 416(1983)
All of the challenged portions of an abortion-restricting ordinance in Akron, Ohio, were invalidated by the Supreme Court. The city could not, for example, require minors under the age of 15 to obtain parental or judicial consent for an abortion, require physicians to provide women with information designed to discourage them from having abortions, impose a 24-hour waiting period after signing the consent form, or require all second-trimester abortions to be performed in a hospital, according to the Court.
Thornburgh v. American College of Obstetricians and Gynaecologists 476 US 747 (1986)
A section of a Pennsylvania legislation mandating doctors to employ abortion procedures that maximised the possibility of foetal survival, even if such treatments raised the medical risks to the pregnant woman’s life or health, was knocked down by the Supreme Court, among other abortion restrictions.
Webster v. Reproductive Health Services 492 U.S. 490 (1989)
The Supreme Court maintained a Missouri law prohibiting state financing and state employees from conducting or advising abortions, but it struck down a clause mandating doctors to screen for foetal viability before aborting a foetus 20 weeks or older. In Webster, four justices argued that Roe v. Wade should be reconsidered.
Rust v. Sullivan 500 U.S. 173 (1991)
The Supreme Court maintained federal restrictions banning Title X-funded family planning clinics from advising or directing customers to abortion facilities.
Planned Parenthood of South-eastern Pa. v. Casey 505 U.S. 833 (1992)
States can need parental approval for a minor’s abortion (as long as judicial bypass is available), a waiting period between requesting and receiving an abortion, and thorough “informed consent” that includes medical information regarding the abortion, according to the Court. The State could not force the lady to sign a statement stating that she had given her husband, if any, prior to the operation. Casey scrapped the trimester system in favour of pre- and post-viability constitutionality testing. Roe was reaffirmed on the basis of stare decisis (“let the decision stand”), to avoid the appearance that the Court was susceptible to political pressure, and because “people had organised their intimate relationships and made choices that define themselves… in reliance on the availability of abortion in the event constrained.” Casey’s “reaffirmation of Roe” was met with disapproval from four justices.
Stenberg v. Carhart (Carhart I) (2000) 530 U.S. 914.
The ACLU submitted a friend-of-the-court brief in this case, urging the Supreme Court to strike down Nebraska’s so-called “partial-birth abortion” prohibition. The Court struck Nebraska’s law on two separate grounds, sending a strong message about the importance of women’s health: the ban’s failure to include a health exception threatened women’s health, and the ban’s language encompassed the most common method of second-trimester abortion, placing a substantial barrier in the path of women seeking abortions and thus imposing an “undue burden.”
Ayotte v. Planned Parenthood of Northern New England (2006) 546 U.S. 320
The ACLU argued this case in front of the Supreme Court on behalf of the New Hampshire clinics and doctors who filed the lawsuit. The Supreme Court, in a majority decision, reaffirmed its long-held concept that abortion restrictions must contain safeguards for women’s health. The case originated as a challenge to a New Hampshire statute that required doctors to wait 48 hours after a parent was told before performing an abortion on a minor, but did not include a medical emergency exception to safeguard a pregnant teenager’s health. Because of this omission, the statute was knocked down by the lower courts. The Supreme Court reversed the decision and remanded the case to the lower court, ordering it to assess whether the New Hampshire legislature would have desired this legislation to include a medical emergency exemption. Otherwise, the Court stated that the statute should be repealed in its entirety. Regardless, the Court ruled that the legislation must be suspended in situations when teenagers suffer medical problems.
Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America, Inc. (Carhart II) (2007) 127 S. Ct. 1610
In both instances, the ACLU submitted friend-of-the-court filings urging the Supreme Court to overturn the first-ever federal restriction on abortion procedures. The prohibition does not, however, contain an exemption to safeguard women’s health. (Three legal challenges to the law, dubbed the “Partial-Birth Abortion Ban Act of 2003,” were filed.) National Abortion Federation v. Gonzales, the ACLU’s challenge, was put on hold in the United States Court of Appeals for the Second Circuit while the Supreme Court reviewed the other two cases.) The Supreme Court maintained the federal prohibition in a 5-4 ruling, undercutting one of Roe v. Wade’s basic principles: that women’s health must remain paramount. In doing so, the Court effectively reversed its decision in Stenberg v. Carhart (Carhart I), which had been handed down only seven years before. Justice Kennedy, writing for the majority, recalled archaic views of women’s role in society and questioned their decision-making abilities. Furthermore, Kennedy said that Congress might reject a doctor’s medical judgement in the case of “medical ambiguity,” and that the “State’s interest in fostering respect for human life at all stages of pregnancy” could exceed a woman’s interest in preserving her health.
Right to life under International Conventions
Article 3 of the Universal Declaration of Human Rights, Article 6 of the International Covenant on Civil and Political Rights, and the main regional human rights instruments such as the American Convention on Human Rights 1969 Article 4, and the European Convention on Human Rights Article 2 all protect the right to life. Article 6 of the Convention on the Rights of the Child expressly protects a child’s right to life and survival, requiring member states to “guarantee to the fullest extent feasible the child’s survival and development.” The right to life should not be read too narrowly; rather, it involves nations’ duties to take proactive actions, such as reducing infant mortality. This interpretation also requires nations to adopt additional proactive steps to preserve human life, such as maternal mortality prevention and treatment, and the prevention and treatment of diseases like HIV/AIDS. Women’s deaths during pregnancy and delivery are addressed in Article 6 of the International Covenant on Civil and Political Rights, as with practises such as female infanticide, widow burning, and dowry murders.
Right to privacy
Article 17 of the International Covenant on Civil and Political Rights, for example, states that “no one should be subjected to arbitrary or unlawful interference with his private, family, home or communications, nor to unlawful attacks on his honour and character.” The Convention on the Rights of Persons with Disabilities, Article 8 of the ECHR, and Article 11 of the ACHR all include similar requirements. The child’s freedom from “arbitrary or unlawful interference with his or her privacy, family, home, or communication” is guaranteed under Article 16 of the Convention on the Rights of the Child. Article 10 of the African Charter on the Rights and Welfare of the Child contains a comparable clause.
THE WOMEN HEALTH PROTECTION ACT
The United States House of Representatives adopted a measure on Friday that Democrats claim will preserve a person’s right to abortion. The Women’s Health Protection Act was enacted in reaction to a Texas legislation that effectively prohibits abortion beyond six weeks, when most women are unaware they are pregnant. The Supreme Court of the United States refused to stop the law from going into force, but the ruling left the door open for future challenges.
The Women’s Health Protection Act would protect a person’s right to choose whether to continue or end a pregnancy, as well as health care providers’ ability to provide abortion services “prior to foetal viability” without state restrictions, such as requiring special admitting privileges or imposing waiting periods.
It would also outlaw limitations on abortion after foetal viability “where, in the treating health care provider’s good faith medical opinion, continuing the pregnancy would pose a risk to the pregnant patient’s life or health.” Republicans claimed that the law goes too far, restricting a state’s authority to regulate online gambling.
After Texas passed its measure earlier this month, House Speaker Nancy Pelosi promised to bring the bill to the House floor. Pelosi said in a statement that the Texas law is “the most severe, deadly abortion restriction in half a century, and its aim is to demolish Roe v. Wade, refusing even to allow exceptions for situations of rape and incest.” This prohibition demands the codification of Roe v. Wade.
Nancy Srivastava is working as Content Associate at Jurisedge Academy.
The opinions expressed in this publication are those of the authors.
Share this:
Related