On the first of September 2021 the Heartbeat Act was passed in Texas after the US Supreme Court refused to block the controversial law. The legislation bans termination of pregnancy once a heartbeat is detectable; this is typically at the 6-week mark of a pregnancy. At this point in the pregnancy most women will be unaware of their pregnancy. Therefore, this act restricts most women from accessing abortion denying them to the right created in Roe v Wade. This law has been subject to a number of criticisms from pro-life activists. It has been argued that it is unconstitutional as it will have the effect of restricting most women from accessing abortion services.
The Law
Roe v Wade created a constitutional right to access abortion services. The 1973 judgment struck down a statute banning abortion and legalising the procedure. The court stated that access to abortion is included within the right to privacy protected by the 14th amendment of the constitution.
The Heartbeat Act limits the access to this right by limiting most women from being able to have an abortion. Detectable foetal heartbeats can occur as early as 5 and a half weeks which would mean the woman may not have experienced any symptoms synonymous with pregnancy. Also, at this point, it is likely the HGC levels will be too low to produce a positive pregnancy test. Therefore, by the time most women have received a positive pregnancy test their ability to access an abortion has already passed. This is a limitation of women’s access to their constitutional right.
The law creates a civil right to sue any doctor who performs an abortion after a detectable heartbeat. As the act is enforced by private citizens instead of government officials the law cannot be challenged unless a private citizen seeks damages, or the Supreme court acts. As the Supreme Court has already failed to block this law, it is unlikely they will intervene now it has passed. Therefore, the government has little to no say in the control of this act. This means that a potentially unconstitutional piece of legislation may receive no challenge.
The law does not provide an exception for pregnancies arising as a product of rape or incest. When questioned on this point Gregg Abbot, Texas’ Governor, falsely claimed that the law does not force victims of these crimes from giving birth. He argued that the act does provide a possibility of abortion and therefore does not force victims of rape or incest to give birth. This has been criticised by many including Rep. Alexandria Ocasio-Cortez, D-N.Y who stated that he failed to have a basic perception of biology.
Reactions to the Law
Texas' Republican Governor Greg Abbott, who signed the Heartbeat Act into law, said the state would "always defend the right to life". Also, Rebecca Parma, senor legislative associate at Texas Right for Life, described this as a ‘massive victory for the pro-life movement’.
President Joe Biden has condemned the decision of the Supreme Court describing it as an ‘unprecedented assault’on women’s rights and promising to ‘protect and defend’ the constitutional rights established in Roe v Wade. However, his power to challenge the law is limited. Activist group’s have described the law as unconstitutional and are concerned for the wellbeing of individual’s denied abortions. Planned parenthood has condemned the act stating that ‘everyone deserves access to abortion’.
Where can the USA go from here?
The debate on abortion has been rife in the USA for many years and the introduction of the Heartbeat Act has demonstrated this. It has been suggested that a solution to this ongoing debate would be to overturn Roe v Wade and allow the American people to govern this through ‘the deliberative processes of the political branches’. Whether this would be a possibility is yet to be determined and its level of success could only be determined once implemented.
President Joe Biden’s administration is taking Texas to court over the act. At the time of writing, it is unclear how these proceedings will turn out and it will be interesting to see how successful this claim will be. Merrick Garland, the attorney-general of the United States, said the Heartbeat Act is “clearly unconstitutional”. It is unclear whether this action will be successful due to the law’s enforcement approach which means that the law can only be struck down by a private citizen. This was a key reason for the Supreme Court’s decision to uphold the law as they stated it was too soon to determine if citizens will enforce the law.
Texas has clearly created controversy with their attempt to protect life by banning abortions after 6 weeks. The law limits women’s ability to access abortion. It is unclear how citizens will use the law so; it will be interesting to monitor this law’s progression. However, it is likely the current debate around the law will continue. It will also be necessary to monitor the president’s action against Texas as this will prove an interesting case that could affect the provision of abortions across the USA.
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