At the federal level, a woman is able to obtain an abortion any time before “viability,” a fetus’s ability to survive or live outside the uterus, any time before 22-24 weeks.
Texas “heartbeat Bill” became state law on Wednesday, 9/1/2021, which allows enforcement of individuals, who do not need to show a connection or injury to the respective abortion procedure, to sue abortions providers and anyone involved in helping an abortion after a “heartbeat” is detected. The law further forbids most abortions after six weeks of pregnancy and pregnancies resulting from incest or rape. Further, defendants are not entitled to legal fees but successful plaintiffs are entitled to at least $10,000 and their legal fees.
On Friday, 8/27/21, the Fifth Circuit Court of Appeals in Texas canceled the hearing scheduled on Monday where providers were going to testify against the bill. On Saturday, 8/28/21, provider groups filed emergency motions with the Fifth Circuit Court of Appeals asking for the Court to either send back the case to a lower court, district court, or issue a “stay” a temporary block of law enforcement. Thereafter, the Fifth Circuit denied the request to block the bill.
So why did the Supreme Court not act?
To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. Nken v. Holder, 556 U. S. 418, 434 (2009); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (citing Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008)).
The Supreme Court did not act based on the providers’ lack of standing. The Court stated that the providers failed to show that there was a real physical danger that would occur within an immediate timeframe that would require the court to order the prevention of that threat. That it is unclear whether the defendants, noted in the providers’ suit, will seek to enforce the Texas law and therefore require the Supreme Court’s intervention. Nor is it clear, based on precedent, whether the Supreme Court can issue an “injunction” against state judges asked to decide the Texas law.
What does this mean for the future? The possible filing of frivolous lawsuits in Texas, the possibility that other states will pass similar laws, the forcing of Texas individuals to obtain abortions by crossing state lines, the physical and emotional effect on those who cannot obtain an abortion out of state, and the causal effect of the new law and rise of unemployment.
Can the Texas law be overturned? The answer is yes. As noted by the Supreme Court, their order “is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.” The Supreme Court certainly predicts challenges to this new Texas law and it is only a matter of time that this enacted law will be challenged.
This article is for informational purposes only and is not offered as legal advice as to any particular matter in any particular jurisdiction. No one should rely or otherwise act on the basis of these materials without consulting an attorney as to the particular facts and applicable law involved.