Regardless of what one believes about the legality of abortion, there are a lot of reasons why Texas’ “Heartbeat Bill” should trouble us. The anti-abortion bill makes it illegal for any female seeking to end her pregnancy beyond a time frame of six weeks into her pregnancy, or once early electrical activity constituting the basis for fetal heartbeat has been detected. The bill is especially troubling because it includes a deliberate circumventing of a foundational concept in American Jurisprudence – Judicial Review.
As a 1L student in law school, Judicial Review is typically the first topic one covers in Constitutional Law. It stems from the landmark case of Marbury v. Madison, in which the Supreme Court affirmed its authority to review legislative and executive actions to determine constitutionality. The Court asserted in Marbury v. Madison that where the Constitution as interpreted by the Supreme Court conflicts with laws or actions of other branches of government, then the Court must declare such laws or actions as unconstitutional and invalid. Further, although it is a lesser-known case, it is just as important for present purposes: Martin v. Hunter’s Lessee. This case extends Marbury and expands the ruling so that state officials, state courts, and state legislatures must follow the Constitution as interpreted by the Supreme Court.
At precisely this point, the “Heartbeat Bill” unconstitutionally burdens the continuing right of a woman to maintain her own bodily integrity and preserve her right to decide her future in the moment of pregnancy. The bill is structured to impose a potentially devastating financial liability on abortion providers and guard the law against being constitutionally challenged. The law is also intentionally constructed in a fashion to evade judicial review by the Supreme Court. Nonetheless, three things are true of the Texas “Heartbeat Bill.”
First, the “Heartbeat Bill” is disturbingly legally creative. Any law may be challenged at two points:
- A law can be constitutionally challenged as a matter of pre-enforcement litigation. Typically, this is the way legal challenges occur.
- A law can be constitutionally challenged as a matter of post-enforcement litigation, or after the law has been violated. This is where the actual challenge will occur concerning this bill and where the challenges will likely prove successful. Some empowered citizen, who has no relationship whatsoever to the accused party, will under the authority of the “Heartbeat Bill” initiate litigation against an abortion provider, the result of which will trigger events toward judicial review of the bill’s constitutionality. The bill is disturbingly creative because it constitutes a deliberate attempt to restrict the application of the law to the state context through procedural strategies, which results in an at least temporary escape Supreme Court review to determine the law’s constitutionality.
Second, the “Heartbeat Bill” is sloppy. It is extremely broad, extending to Texas citizens the right to act as a private attorney general. The bill demonstrates no consideration to the importance of the doctrine of standing, which requires that the plaintiff bringing the suit must have suffered an actual or imminent injury at the hands of the defendant, which is also redressable through a judicial determination.
The bill is even optically sloppy because it makes no effort to hide the fact that it is motivated by a complete disregard for the question of its constitutionality. It’s a deliberate and blatant defiance of the law of the land, a blatant intent to subvert judicial review in the interest of political ideology, and a calloused disregard for the human dimension of the abortion struggle. Bear in mind that the insensitive harshness and brutality of the bill is evidenced, especially in the fact that there are no exceptions for pregnancies resulting from rape or incest. The bill is extremely inept and does little to hide the fact that it is motivated by the desire to procedurally undermine the necessary judicial review regarding constitutionality for as long as possible.
Third, the “Heartbeat Bill” is destined to collapse under the weight of its own unconstitutionality. Let’s not forget that, even though the “Heartbeat Bill” is law in the State of Texas, a woman’s right to decide whether to continue her pregnancy is still the law of the land under the Supreme Court’s viability test in Roe v. Wade. For the moment, at least, the Supreme Court has not overturned Roe v. Wade. Further, access to abortion remains intact under the undue burden test of Planned Parenthood v. Casey.
Unfortunately, for the moment, legality is not practical in the state of Texas. Abortion providers are no longer providing their services as prevalently as pre-September 1, 2021. In fact, on September 1, the day the law became active, over 85% of women were turned away by providers. The bill’s advocates are undoubtedly celebrating this momentary intrusion upon a woman’s constitutional right to decide. But rest assured, the Texas “Heartbeat Bill” is not the final word, and it certainly should not be.
Eddy F. Carder, Ph.D., J.D.
This pseudo-legal method by which Texas Republicans are attempting to accomplish their anti-abortion ends goes against the entirety of the American politico-judicial process. Our system is built upon the notion that the social contract frequently has to be “hashed out” in the context of the political judicial system. Judicial Review is how this “hashing out” occurs. However, the entirety of this Texas abortion legislation is centered on circumventing that very process that has repeatedly proven itself as a reliable method in the history of our national existence.
In that sense, the “Heartbeat Bill” represents more of a spirit of white male hierarchy and oppression than a democratic approach to living in a democratic community with other human beings.
Eddy F. Carder, Ph.D., J.D., teaches constitutional law and philosophy in Prairie View A&M University’s Marvin D. and June Samuel Brailsford College of Arts and Sciences.