At SCOTUS, Texas Pro-life Law in the Balance

November 1, 2021

Judging by the typically apoplectic reaction by much of the media to the Texas Heartbeat Act being heard at the Supreme Court today, you'd think the fate of Roe was being immediately decided today once and for all. Never mind that today the Court was merely examining two legal questions not directly related to abortion at all:

1) Whether the federal government (in this case the Biden administration Department of Justice) can intervene and sue over a state law like this, and

2) Whether a state can confer upon private citizens the authority to enforce a law like this, while barring the state itself from enforcing it.

Yet on these questions hinge the validity of S.B. 8, the Texas's Heartbeat Act. In addition to protecting the unborn after the detection of their heartbeat, the law allows private citizens (instead of the government) to bring suit against abortionists violating the law. Since the Heartbeat Act has gone into effect several months ago, many lives have been saved in Texas, and the Biden administration had to jump in with its attempt to block another pro-life law.

Quizzed by Justice Thomas on what other cases they have similarly intervened, the Biden administration DOJ tried to claim that its desire to intervene did not hinge on the underlying right (in this case abortion). Is that really believable? As Ed Whelan has noted, "[W]hy would anyone imagine that this DOJ would, say, sue New York if it adopted a [similar] scheme [on] firearms?"

When Justice Kagan referenced the idea of a "normal heartbeat abortion restriction" during her questioning of Texas Solicitor General Judd Stone, she revealed what we all already know but many don't want to admit -- that we are talking about unborn life in the womb, all of which deserves to be protected.

The refusal to acknowledge this reality is why, as Stone noted, the Biden administration is bringing such an "extraordinary cause of action" against Texas -- a lawsuit that is being brought despite not being "fairly traceable to any allegedly unlawful behavior by state court judges or clerks" on the Heartbeat Act.

Some justices seemed skeptical of Texas's ability to have private citizens enforce such a law in this manner. Will it be enough to determine the outcome of this case? We shall have to wait and see.

As for today, it's certain that some -- like Justice Kagan -- were very focused on the underlying issue. "Guns, same sex marriage, religious rights," she listed off -- these could be the next subject of a state law like Texas' S.B. 8 in this case. When Judd Stone tried to explain how abortions were still occurring in Texas, Kagan wryly jumped in: "I'm sorry. You're exactly right. I should have said every woman in Texas who has not learned and has not made a decision before six weeks."

As Jonathan Mitchell, representing the interests of those who would bring suit under this law, observed, the Biden administration is "asking the Court to restrain Texas from adjudicating lawsuits" -- that is, from hearing and deciding cases at all.

Speaking in front of the Court today after the argument, FRC's Mary Szoch observed:

"Texas found a way to defend the unborn child in the womb. Texas found a way to say, 'the abortion movement will no longer prey upon our women and children.' And thank goodness, because the world could use a lot more Texans!"

As we await the result in this case, may we continue to pray -- and work -- to continue to protect the unborn.