Tourists stop outside the Supreme Court building in Washington, D.C., June 17, 2021. (Jonathan Ernst/Reuteres)
Just before midnight, the Supreme Court, over the incoherent objections of four dissenting justices, denied the request by Texas abortion providers for emergency relief against the Texas Heartbeat Act. The compelling procedural grounds on which five justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — ruled have no direct bearing on the substantive question whether the Court will overturn Roe v. Wade and Planned Parenthood v. Casey in next term’s blockbuster abortion case, Dobbs v. Jackson Women’s Health Organization. But the clarity, courage, and commitment to the rule of law that the five justices demonstrated in the midst of intense fury from the Left — and in the face of an exasperating cop-out by Chief Justice Roberts — are heartening indeed.
Enacted in May, the Texas Heartbeat Act, also known as S.B. No. 8, prohibits a physician from performing an abortion (other than in a medical emergency) “if the physician detected a fetal heartbeat for the unborn child.” The fetal heartbeat is usually detectable at six weeks of gestation. The Act specifies an effective date of September 1.
In an ingenious effort to prevent abortion providers from blocking the Act from taking effect, the Act prohibits state officials from enforcing the Act in any way. It instead authorizes any private person to bring a civil action in state court against anyone who performs a post-heartbeat abortion or who knowingly aids or abets a post-heartbeat abortion. (Federal restrictions on standing — on who can sue — in federal court do not apply in state court.) It entitles successful plaintiffs to at least $10,000 in damages for each violation as well as to injunctive relief and attorney’s fees.
Because state officials are barred from enforcing the Act, the usual path that abortion providers would take to prevent the Act from becoming effective — suing those officials to prevent them from enforcing the Act — is a dead end. Instead, abortion providers would be able to challenge the constitutionality of the Act only if and
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