The Biden administration asked the U.S. Supreme Court to block a Texas law that is the most restrictive ban on abortion in the country on October 18, calling the bill “clearly unconstitutional."
“Allowing S.B. 8 to remain in force would perpetuate ongoing injury to thousands of Texas women who are being denied their constitutional rights,” the brief said. The brief took issue with the six-week ban, acknowledging that is before the vast majority of abortions occur and before the majority of people know they are pregnant.
Photo Courtesy: Stephen Spillman/Associated Press
The bill, known as the Texas Heartbeat Act, prohibits the procedure at the first sign of “cardiac activity.” Upon signing the bill, Gov. Greg Abbott declared the law “ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.”
But many doctors say this is not a heartbeat, but electrical activity. “The term fetal heartbeat is pretty misleading,” said Dr. Jennifer Kerns in an interview with NPR. “In no way is this detecting a functional cardiovascular system or a functional heart,” Kerns explained.
Still, pro-life organizations hailed the landmark legislation. In a statement, Texas Right To Life applauded legislators for carrying out “their solemn duty to protect the lives … of the most vulnerable and innocent Texans in the womb.”
The law is specifically designed to avoid legal challenges. Instead of calling for state enforcement, the law essentially deputizes private citizens, encouraging them to sue anyone aiding in the procedure after 6 weeks in any way -- meaning doctors, patients, friends and even Uber drivers -- with a reward of over $10,000 for those successful in their suits.
Another issue the brief takes with the Texas ban is that it doesn’t allow many exceptions--not even in the case of rape or incest. Gov. Greg Abbot downplayed the need for a rape exemption by stating the “number one goal in the state of Texas is to eliminate rape.”
The law exempts abortions performed due to “medical emergencies,” but it does not define this term. While some medically necessary abortions are blatant and obvious, there are some more nuanced cases -- such as a woman unable to continue chemotherapy while pregnant -- which are less clear. Doctors who preform abortions under such conditions must do so knowing they may be sued. The bill makes no exceptions for non-viable pregnancies or cases in which the fetus has a fatal and untreatable condition.
The Biden brief is likely to be the most successful attempt to block the bill, but it is not the first. On October 6, 2021, a federal judge in Austin issued a temporary block of the law’s enforcement in response to a suit brought by the Justice Department. But weeks before that, as people across Texas began to grapple with the legally ambiguous restriction of their reproductive rights, an unlikely potential savior emerged from the underworld: The Satanic Temple.
The nontheistic group, which is recognized by the IRS as an official religion, filed a claim with the FDA that the law violates the Texas Religious Freedom Restoration Act and infringes upon temple member’s right to practice their religion. The third fundamental tenet of The Satanic Temple is “One’s body is inviolable, subject to one’s own will alone,” according to their website.
Lawyers representing the religion sent a letter to the FDA demanding its members have access to abortifacients, drugs that induce abortion. They asserted these rights under the Texas Religious Freedom Restoration Act, a law that allows certain Native American tribes to use peyote, an illicit hallucinogen, in religious rituals. Temple leaders, their website claims, would obtain abortive medication for their members and distribute them, to be used as part of a “religious ceremony.”
It is a long-shot legal maneuver, but still many women's rights advocates take solace in the Satanic Temple being a thorn in the side of those seeking to limit access to reproductive healthcare. Religious liberty is typically a defense used by conservatives to argue against abortion rights, so the temple's suit possesses a pinch of irony. And what’s more, the Temple may be guaranteed at least some form of success, outraging the Republican pundits sure to decry the Temple’s filing, claiming it frivolous to assert their outdated and unpopular religious views and teachings to influence the law of the land.
If the claim is successful, the Temple would create an interesting loophole in the restrictive legislation. It could be expected that copycat filings would emerge across the state, and abortion rights may return to some women seeking that care after the six-week cutoff.
Abortion advocates are alarmed that people may have to rely on the Satanic Temple to receive reproductive healthcare, and this points to a broader attack on reproductive rights in this country. Dozens of conservative states have begun to pass similar legislation, like a bill in Mississippi that bans abortion after 15 weeks--long before the viability of a fetus mentioned in Roe v. Wade. The Supreme Court is hearing arguments in December for a case that seeks to challenge that law’s constitutionality.
Abortion access is also restricted through the closure of clinics, particularly in rural areas. There are only 19 clinics in Texas, the second largest state in America, offering abortion procedures. No clinics exist outside Texas’ four largest urban areas: Austin, San Antonio, Dallas, and Houston. This leaves hundreds of miles between clinics and millions without access to essential reproductive care. Mississippi is one of six states with only one abortion clinic.
As pro-life advocates defend the Texas bill, and work to strip abortion rights nationwide, the Biden administration and unlikely forces unite in the fight for the reproductive healthcare of millions. How this battle plays out over the coming months represents the most consequential fight for abortion rights in recent American history.