The Implications of Texas' Abortion Ban and the Supreme Court's Ruling in Whole Women's Health v. Jackson

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Whole Women's Health involves Texas' bill banning abortion once a fetal heartbeat is detected.[i] The heartbeat is detected estimated at roughly six weeks—where the Supreme Court of the United States (SCOTUS) ruled six to three in favor of the inability of government officials to enforce the ban.[ii]

Instead, the power of enforcement rests in private citizens who may sue those performing abortions and obtain awards of at least $10,000 per case, as reported by FOX news.[iii] Before the ruling by the Supreme Court, there was an inevitable influx into neighboring states by individuals seeking to obtain abortions.[iv] This influx was following the enaction of the ban in Texas. Even following the ban's enaction, some practitioners refused to abide by the ban and continued hoping that efforts to appeal the law would be successful.

Despite an appeal pending, many were disappointed by the ruling against the freeze on the order's removal. Anti-abortion groups, indubitably, stood in praise for the continued enforcement of the ban. In moving forward, the appeals question the constitutionality of such a ban as Roe v. Wade legalized abortion despite widespread opposition to the procedure.

Talk of Abortion Ban Leads to Hundreds Seeking Abortions

Once the ban on abortions after a fetal heartbeat was detected went into effect, a surge of women into neighboring states such as Oklahoma, Kansas, and Colorado resulted.[v] Additionally, because Texas enacted a law banning abortions once a fetal heartbeat was detected, many women were forced to drive hundreds of miles.[vi] Nevertheless, they each maintained hopes of finding a facility across state lines that could accommodate them and perform an abortion.

Unfortunately, this influx of women into neighboring states resulted in abortion clinics struggling to meet the demand[vii] In contrast, others faced the somber moments in which they had to turn many women away due to a lack of supplies or funding to continue to support the dozens of new patients. This lack of access to necessary supplies represented the beginning of a crisis relating to budget and the availability of resources for those seeking abortion services.[viii]

Several Practitioners Continue Abortion Services Amidst Texas' Abortion Ban

The Texas law asserts that private citizens can bring a civil suit against those assisting in abortions once a fetal heartbeat has been detected. A fetal heartbeat is estimated to typically occur around six weeks, as reported by NBC News.[ix] The enactment causes a ban on abortions, usually before a woman realizes that she is pregnant. Thus, this lack of knowledge regarding pregnancy status results in a significantly minimal window in which women have the option to abort legally. The ban is estimated to have reduced the number of abortions within Texas by nearly 50 percent, as reported by the Texas Policy Evaluation Project at the University of Texas, Austin.

Under the New Law, Whole Women's Health and the Southwestern Women's Surgery Center have been using reserve funds and donations to continue offering abortions. However, due to funding issues, they have had to scale back to sometimes as few as two days a week. As a result, the decimation of small clinics is occurring.[x] Many support the ban, such as Carol Tobias, the National Right to Life Committee president. Those pro-life supporters seek to continue the enaction of such prohibitions, urging that unborn fetuses are still lives and deserve the opportunity to live. In addition, these individuals pursue the overturning of Roe v. Wade.

Many others disagree with this stance, believing such an overturning will set America back centuries. It is imperative to remember the contributions of "Susan B. Anthony," who advocated for women's suffrage. Women must unite in a cohesive stance in voting for representatives—from their council members to Congress members. Every woman has a call to action. Every woman has a voice to vote either in support or opposition of specific abortion rights and should not quiet their voice nor take such a privilege flippantly.

SCOTUS' Decision and Its Constitutionality

As conflicting opinions regarding abortion laws persist, Justice Sotomayor voiced specific concerns regarding the constitutionality of the enactment of Texas' ban on abortions once a fetal heartbeat was detected. In United States v. Texas[xi], Justice Sotomayor states,
"women will suffer personal harm from delaying their medical care. Moreover, as their pregnancies progress, they may even be unable to obtain abortion care altogether. . . every day the Court fails to grant relief—is devastating, both for individual women and for our constitutional system, as a whole, I dissent from the Court's refusal to stay the Fifth Circuit's order administratively."[xii]

This statement evidences the Justices' disdain for the Supreme Court's failure to uphold the injunction on the ban enacted by Texas. Furthermore, the American Constitution Society was quoted by "CNN Politics" as labeling the ban a "horrific Texas scheme." The organization described the "minimal" step of the Supreme Court by allowing the lawsuit against the ban to proceed, despite not enforcing an injunction on the ban.[xiii]

Conversely, Justice Kavanaugh speaks often in support of anti-abortion right-leaning individuals, as observed in his dissenting opinion in June Medical Service v. Russo.[xiv] In this case, abortion clinics filed suit concerning an Act requiring any doctor performing abortions to have active hospital admitting privileges. The abortion clinics contended that this resulted in an undue burden on a woman's due process right to abortion as a choice resulting in the enjoinment of the Act.[xiv] Despite this, Justice Kavanaugh dissented, asserting insufficient evidence to indicate that the doctors referenced in the case as plaintiffs would have their clinics wholly closed down due to the Act. In short, his opinion appears to assert an alleged lack of sufficient unconscionable harm because of the enforcement of the Act.

Concluding the Review

Overall, the Texas ban on abortions sparked debates between leftists and rightists, with many falling somewhere between the two. Notably, it is a severe novel divide that has developed since Roe v. Wade. Individuals within society must choose a side to stand with in solidarity. A rebuttal exists in response to many who believe that a fetal heartbeat indicates life. The limit to legal abortion is disputed by those stating abortion should be legal until a fetus is "viable" and capable of surviving outside the womb. After all, they contend, how can we justify supporting a remedy for something that "could be" but for which actual harm has not occurred since the existence of the thing suffering harm is in question.

Furthermore, supporters of legal abortion until a fetus becomes viable also assert that the fetus could still fail to survive through various other factors. Remembering this, many still grapple with where to draw the line on the legality of abortion. Many are also unsure what precisely constitutes a reasonable timeframe for abortion instead of a "late-term" abortion. In moving forward, it will be necessary for society to determine which side will prevail, and this pivotal decision will ultimately indirectly govern the direction of the social order many have become accustomed to. What changes will result from this requirement to choose a side, in terms of elected officials and relating to future policy changes?

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Charnell Gilchrist

References

[i] Whole Women’s Health v. Jackson, U.S. Dist. LEXIS 1643815 (2021)

[ii] Id.

[iii] The Associated Press, Doctor Who Defied Texas’ Abortion Law is Sued, Launching A Legality Test of The Ban, (Sep. 20, 2021), (https://www.npr.org/2021/09/21/1039191127/doctor-who-defied-states-abortion-law-is-sued-launching-a-legality-test-of-the-b)

[iv] CNN NewSource, Oklahoma Still Seeing Huge Influx of Women From Texas Getting Abortion Provider Services, (2022), (https://krdo.com/news/2022/02/16/oklahoma-still-seeing-huge-influx-of-women-from-texas-getting-abortion-provider-services/)

[v] Shefali Luthra, Texas’ six-week abortion ban is still causing more than twice as many patients at clinics in nearby states, (Feb. 11, 2022), (https://19thnews.org/2022/02/texas-abortion-ban-patients-clinics-surrounding-states/)

[vi] Id.

[vii] Id.

[viii] Tony Gutierrez, Texas independent clinics fight to survive under restrictive abortion law, (https://www.nbcnews.com/news/us-news/texas-independent-clinics-fight-survive-under-restrictive-abortion-law-n1283696)

[ix] United States v. Texas, 595 U.S. 1, 2 (2021)

[x] Tony Gutierrez, Texas independent clinics fight to survive under restrictive abortion law,(https://www.nbcnews.com/news/us-news/texas-independent-clinics-fight-survive-under-restrictive-abortion-law-n1283696)

[xi] Id.

[xii] Id.

[xiii] Ariane de Vogue, Supreme Court lets Texas abortion law continue but says providers can sue, (Dec. 10, 2021), (https://www.cnn.com/2021/12/10/politics/texas-abortion-law-scotus)

[xiv] June Medical Service v. Russo, 140 S.Ct. 2103 (2020)

[xv] June Medical Service v. Russo, 140 S.Ct. 2103 (2020)

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Currently pursuing a Juris Doctor at Western State College of Law, freelance writer Charnell Gilchrist, a North Carolina native, now spends her free time writing in sunny Aliso Viejo, CA.

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