The Texas Heartbeat Act, which prohibits abortions after a fetal heartbeat can be detected, took effect September 1. Prior to that, as well as since then, abortion providers and even the federal government have brought lawsuits challenging it in both federal and state courts. The law, which relies on private citizens to enforce its requirements through private lawsuits rather than by state officials, has proven to be a procedural stumbling block for the abortion industry’s attempts to get it declared unconstitutional.

The U.S. Supreme Court issued two decisions on December 10 which will help the lower federal courts involved in the case determine who are proper Defendants in the case, but left the law, also known as SB8, in effect.

The day before, a Texas state court judge also issued a ruling declaring several of the law’s enforcement mechanisms unconstitutional, while specifically declining to address the constitutionality of the abortion ban itself.

The bottom line of both sets of decisions is that the Texas law remains in effect for now, but with questions as to whether there are – pending further court proceedings – any means to enforce it.

Supreme Court Associate Justice Neil Gorsuch, writing for the majority in Whole Woman’s Health v. Jackson, dismissed several of the defendants sued by the abortion seller plaintiff, including a judge, a court clerk, the Texas Attorney General, and a private citizen. That left several defendants who are Texas state officials charged with overseeing medical licenses, who would be involved in taking enforcement actions against abortion clinics for violating terms of the Texas Health and Safety Code, which now includes SB8.

The high court also issued a two-sentence order in United States v. Texas  brought by the U.S. Department of Justice (DOJ), denying it the relief it requested, which was to block the Texas law while its lawsuit proceeded in the lower federal courts. 

Those two rulings, in the opinion of Ed Whelan, the Distinguished Senior Fellow of the Ethics and Public Policy Center, don’t help the abortion industry much. In fact, he calls it, “a big loss for the abortion providers.” He continues: “The only defendants whom they can pursue for relief are state licensing officials who might pursue them down the road for violations of the Texas Heartbeat Act. The ruling does nothing to remove the threat of lawsuits for violations of the Act.”

Jonathan Saenz, President and Attorney for Texas Values, an ally of Focus on the Family, celebrated the high court’s rulings.

“Preborn babies today are saying three words – ‘God Bless Texas,’ Saenz said in a statement posted on Texas Values’ blog.

“There are now over 15,000 babies who have been saved since the Texas Heartbeat Law took effect. The Texas Heartbeat Law remains fully enforceable and shows that Texas takes the dignity and protection of the preborn seriously. We are celebrating the lives already saved, yet, we are not done yet.”

However, a state court ruling from the day before puts the “enforceability” of the heartbeat law in doubt.

As background, the abortion industry has also sued Texas in multiple state courts, and those lawsuits have all been consolidated in the courtroom of Judge David Peeples of the District Court of Travis County, Texas.

He issued a ruling on December 9 that declares certain of the law’s enforcement provisions unconstitutional, including the provision allowing any private citizen to sue those involved in performing or facilitating an abortion, and the provision awarding $10,000 in damages to the successful claimants.

But Judge Peeples avoided the abortion question and focused only on the procedural aspects of the law.

“This case is about the Texas Heartbeat Act, Senate Bill 8,” the judge wrote. “SB 8 combines new abortion regulations with completely new civil procedures to enforce them.

But this case is not about abortion; it is about civil procedure. It is about whether SB 8’s civil procedures are constitutional. This Order declares that some of SB 8’s civil procedures are unconstitutional, and that others will remain pending and will be given more study than the court has been able to provide at this time (emphasis in original).”

­­The Texas ruling will be appealed, and abortion providers in the Lone Star State will not resume abortions just yet, but would be “eager” to do so if an injunction were issued against the law, according to Jacki Dilworth, communications director at Whole Women’s Health, which has four abortion facilities in the state and is the lead plaintiff in the federal lawsuit.

“We are so grateful to Judge Peeples for his ruling today,” Dilworth told The Texas Tribune. “[The law is] depriving Texans of their rights, autonomy, quality of life, and health.”

Texas Right to Life’s legislative director, John Seago, expressed disappointment in Peeples’ ruling but remained optimistic.

“This doesn’t really change the status of Senate Bill 8 at all,” he said. “It is just as risky for the abortion industry to perform a post-heartbeat abortion tomorrow as it has been for the last 100 days.”

The most important takeaway from all these rulings concerning the Texas heartbeat law is that the law remains in effect. More legal proceedings will occur, and the cases could end up at the U.S. Supreme Court as well as the Texas Supreme Court. In the meantime, abortionists are either avoiding abortions entirely or limiting them, as the law requires, to before a heartbeat can be detected.

And lives are being saved on a daily basis.


Supreme Court Justices Grapple with Texas Heartbeat Law During Oral Arguments

Texas Heartbeat Bill Halves Number of Abortions in the State, Study Finds

Supreme Court Agrees to Hear Texas Heartbeat Case on November 1

Supreme Court Offers Glimmer of Hope to Abortionists, Department of Justice Seeking to Block Texas Heartbeat Law

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