WASHINGTON (BP) – The U.S. Supreme Court issued an order late Wednesday night (Sept. 1) that denied an emergency request to block a Texas ban on abortion when a fetal heartbeat can be detected, encouraging pro-life advocates and prompting calls for ministry to women in need.
In a 5-4 split, the high court rejected a last-ditch effort by abortion providers and advocates to halt enforcement of the Texas Heartbeat Act (S.B. 8), which can prohibit abortions as early as five to six weeks into pregnancy. The law had gone into effect Wednesday morning without the justices releasing an order as a response to the emergency request for an injunction by Planned Parenthood and other organizations.
The conservative wing of the high court – Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – formed the majority that agreed to the unsigned order. Chief Justice John Roberts joined Associate Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan in writing dissenting opinions.
The Texas law became the first ban on abortion after a fetal heartbeat to take effect in the United States. About 85 to 90 percent of abortions in Texas are performed on women who are six weeks or more along in pregnancy, according to abortion-rights organizations. At least 10 other states have enacted fetal heartbeat bans, but courts have blocked the others from going into effect.
In an inventive move, the law prohibits any government official from enforcing the ban but authorizes a private citizen to bring a civil lawsuit against someone who performs an abortion barred by the measure or assists in the performance of such a procedure. Under the law, a court is to award at least $10,000 to a successful plaintiff.
In its one-and-a-half-page order, the high court said its action “is not based on any conclusion about the constitutionality of Texas’s law” and does not restrict “other procedurally proper challenges” to the measure, including those in state courts. The Supreme Court’s order, however, gave hope to pro-life proponents regarding the justices’ future rulings on abortion restrictions and possibly the 1973 Roe v. Wade opinion that legalized the procedure throughout the country.
The high court already has agreed to rule in its next term, which begins Oct. 4, on a Mississippi law that prohibits the abortion of an unborn child whose gestational age is more than 15 weeks. The court has not set a date for oral arguments in that case, which is Dobbs v. Jackson Women’s Health.
The Southern Baptist Ethics & Religious Liberty Commission (ERLC), other pro-life organizations and the state of Mississippi have urged the Supreme Court to reverse the Roe opinion.
“The court confirmed here what we all expected, namely, that while this law may go into effect in Texas, the real vehicle for overturning Roe comes later this fall with the Dobbs case,” said Chelsea Sobolik, the ERLC’s acting director of public policy, in written comments.
“Our brief in that case directly asks the court to overrule both Roe and Casey,” she said. “Every life has innate dignity, and we will always work to protect the most vulnerable among us.”
The high court’s 1992 ruling in Planned Parenthood v. Casey affirmed the Roe decision but permitted some state regulation of the procedure.
Southern Baptist ethicist Andrew Walker said Thursday in a commentary, “The seemingly unthinkable has happened in the Republic of Texas: Abortion is effectively outlawed, and Roe v. Wade severely defanged.
“The world has speculated what a post-Roe world would entail,” wrote Walker, associate professor of Christian ethics at Southern Baptist Theological Seminary. “Because of Texas, we’re about to get a view in real-time.
“Pastors, it’s up to you to help paint a vision of that world in our local congregations. That means the pro-life rhetoric that Christians have rightly touted must be enfleshed with the incarnational love of Jesus Christ. The only way to deny the culture of death’s fear-mongering is to demonstrate with tangible action that Christians will let no vulnerable women or unwanted children go unloved.”
Texas Right to Life described the Supreme Court’s order as “a massive victory” for the pro-life movement. In addition to expressing optimism the law would continue to survive legal challenges, the organization said it is “encouraged this ruling foreshadows how the Supreme Court may rule” in the Dobbs case.
Democrats at the top of the federal executive and legislative branches declared they would act in an attempt to thwart the Texas law.
President Biden harshly criticized the Supreme Court’s order and announced his administration would “launch a whole-of-government effort” to protect abortion rights in Texas. He said the Department of Health and Human Services and the Department of Justice particularly would determine what “legal tools” the federal government has to safeguard women and abortion providers.
After decrying the high court’s inaction the day before, Biden issued a statement Thursday lambasting the order as “an unprecedented assault on a woman’s constitutional rights” under the Roe decision. The president charged the order permitting authorization for private citizens to enforce the ban “unleashes unconstitutional chaos and empowers self-appointed enforcers to have devastating impacts.”
Speaker of the House Nancy Pelosi said the law “unleashes one of the most disturbing, unprecedented and far-reaching assaults” on abortion providers that “necessitates codifying Roe v. Wade.” She said the House of Representatives would vote soon on the Women’s Health Protection Act, which would guarantee abortion rights in federal law.
In its order, the high court acknowledged the abortion providers seeking an injunction “have raised serious questions regarding the constitutionality” of the Texas law, but their request “also presents complex and novel antecedent procedural questions on which they have not carried their burden.”
“[I]t is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention,” the court said.
The defendants in the lawsuit filed by the abortion providers include a state judge, a country clerk and a private citizen who is a pro-life advocate.
Planned Parenthood Federation of America, the Center for Reproductive Rights and the ACLU were among the organizations that made an Aug. 30 request of the Supreme Court to halt the Texas law’s enforcement. The abortion-rights advocates asked for the high court’s intervention after the Fifth Circuit Court of Appeals, which includes Texas, rejected their Aug. 29 request for such action.
The Texas ban, which was enacted in May, includes an exception for a medical emergency in a mother but none for a pregnancy that is the result of rape or incest.