Jakob Eiseman, Editor-in-Chief
On Friday, Oct. 8, the Fifth Circuit Court of Appeals ordered that Texas Senate Bill Eight (SB 8) be placed in effect while further litigation on its legality be conducted. SB 8 is the controversial bill posed by the Texas State Senate which would impose an effective ban on abortion after the sixth week of pregnancy by allowing individuals to take legal action against abortion clinics and physicians.
The bill, also referred to as The Heartbeat Act, claims to prevent the disposal of human life after a heartbeat can be detected within a fetus. As many women may not even be aware of their pregnancy until after the sixth week, the bill has come under heavy political, social and legal scrutiny since its proposition in September.
When the Supreme Court voted not to block the bill’s implementation on Sept. 8, the U.S. Justice Department filed a lawsuit swiftly, charging the bill as impeding the rights of Texans. Attorney General Merrick Garland referred to the bill in a press release as “clearly unconstitutional under long standing Supreme Court precedent.”
A month later on Wednesday, Oct. 6, U.S. District Judge Robert Pitman nullified SB 8 temporarily, meaning it could not be enforced and suits could not be filed against abortion clinics as the DOJ’s suit moved through the court system. This current rulling by the Fifth Circuit Court of Appeals means that the bill is now in effect again, and in addition, means that any abortion clinics or doctors which helped terminate pregnancies involving a fetus with a heartbeat from Oct. 6 to Oct. 8 can be taken to court for up to $10,000 in damages. Several women’s rights groups and pro-choice non-profits have begun mobilizing resources and lawyers to aid in possible lawsuits filed against these clinics for abortions performed in that 48-hour window.
The Fifth Circuit Court is statistically one of the most conservative courts in the U.S., and has blocked similar rulings in the past which would nullify SB 8 and other similar bills. The Biden administration has already announced their plans to appeal and continue challenging rulings on SB 8 meaning the last stop for this case will likely be back in the hands of the U.S. Supreme Court.
Only one doctor thus far has been sued as a result of SB 8, but protests such as the Women’s March and similar assemblies around Texas government buildings and in Texas cities have kept the bill relevant in public discourse. Texas state Senator Byran Hughes, the author of SB 8, said in a statement that the bill was designed with one main tenet in mind: “if there is a heartbeat detected, that little baby will be protected.”
Hughes also said “The law does not ban abortions after six weeks. It requires that a physician performing an abortion first check for a fetal heartbeat. If there is a heartbeat, the physician may not abort the child.”
Hughes’s statement is somewhat disconnected from his own bill, however, as the legal phrasing of the bill was purposely designed not to outwardly block abortions at the state level, but to allow private citizens to enforce the law through lawsuits. This caveat is what was announced as the reasoning for the initial Supreme Court ruling. In the Supreme Court’s September filing, Chief Justice Roberts wrote that “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”
The Biden administration pointed out that the use of private citizens as “state actors” could be used in other similar bills to undermine some of the most important precedent cases from the history of the Supreme Court, but there have not been any filings to the court of this type since.