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The End of Roe v Wade?

Author: Arvind Salem

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In Texas a new, and more restrictive, abortion act has passed over much opposition. Signed in May and effective as of September 1st, the Texas Heartbeat Act restricts abortion, making it illegal as soon as medical professionals can detect a heartbeat. A heartbeat can usually be detected at around 6 weeks, this is before many women even know that they are pregnant. The law allows no exception in cases of rape and incest.

Recognizing that these features are controversial, the Texas legislature included language that would make it difficult to challenge the constitutionality of the law. The Texas legislature placed the enforcement of this law in the hands of private citizens. The law encourages private citizens without any personal interest to enforce the law by providing them a $10,000 reward if they sue anyone ”aiding or abetting” an abortion in violation of this act and emerge victorious. This has massive consequences as the traditional procedure to challenge a state law is to sue the official charged with enforcing the law, which cannot happen in this case as the law is not being enforced by state officials. In addition, this provision bypasses the traditional requirement that both parties involved in a case have a vested interest, thereby allowing more people to enforce the law. It is unclear how the courts will respond to the procedural difficulties posed by this provision.

A group of abortion providers sought to stop this bill, requesting the Supreme Court in an emergency appeal to block the enforcement of the law. The abortion providers were especially concerned as 85% of abortions in Texas take place after 6 weeks and these new restrictions could cause clinics to close. The providers also pointed out that Supreme Court precedent prohibits states from banning abortions until the fetus is viable- usually between 22-24 weeks.

In a 5-4 decision, the Supreme Court denied the emergency appeal just before midnight on September 1st, a day after the law went into effect. Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented. Chief Justice Robert's opinion was joined by Justices Breyer and Kagan who also wrote their own dissents. Justice Sonia Sotomayor did not join Chief Justice Robert's dissent, but her dissent was notable for how bold it was. She wrote that the majority decided to "bury their heads in the sand" and concluded with "Because the court's failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent."

The Supreme Court clearly said that this decision is not the Supreme Court overturning Roe v Wade. The majority opinion said that its decision was " not based on any conclusion about the constitutionality of Texas's law" The Supreme Court did not make a sweeping statement about abortion doctrine, instead they decided that the burden of proof required to stay a law that was not met.

This decision was met with disapproval from top Democrats including President Joe Biden, Attorney General Merrick Garland, and Speaker of the House Nancy Pelosi. In response to this decision, there have been renewed calls to pack the Supreme Court (i.e. add more seats to it). In addition, House Democrats have issued a bill that codifies Roe v Wade as federal law. The bill could pass the House but is likely to face a tougher battle in the Senate, where Democrats have a narrow majority.



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