In a blow to reproductive rights in America, the US supreme court has declined to block a Texas law which effectively operates to ban abortion in the state in almost all circumstances after six weeks’ gestation. Abortion providers and advocates estimate that the law (Senate Bill 8 or the “Texas Heartbeat Act”) will in practice prohibit at least 85 per cent of abortion procedures in Texas and cause many providers to shut down.
The court was split five to four in its decision earlier this month. Justice Sonia Sotomayer, one of the dissenting members, described as “flagrantly unconstitutional” the statute which empowers private citizens with no connection to an abortion to issue a civil action against anyone who performs or “aids and abets” the performing of an abortion. A court may award damages of $10,000 and legal costs in favour of a successful claimant. Such a legislative scheme, operating to delegate enforcement of the law from state officers to ordinary citizens and in turn to reward citizens for hunting down those who assist women in crisis pregnancy seeking abortion services, is unprecedented, as noted by the chief justice, John Roberts, in his dissenting judgment.
Sotomayer said that the law effectively has “deputised the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbours’ medical procedures”. The clever and novel enforcement structure – outsourcing authority from state officials to private citizens – makes the law difficult to challenge as it is unclear who exactly should be sued.
The law has now come into effect, prohibiting abortion access in the majority of cases it is needed in Texas
While several states across the US have passed so-called heartbeat Bills in the past two years, aiming to restrict abortion access, those Bills have been challenged and have not yet been implemented. Anti-abortion campaigners and legislators have awaited an opportunity for the seminal Roe v Wade case, which established abortion as a constitutional right until the point of viability (usually about 22-24 weeks), to be struck down.
Access prohibited
The failure of the supreme court in this case to block the legislation, however, has meant that the law has now come into effect, prohibiting abortion access in the majority of cases it is needed in Texas. In this way, it has essentially leapfrogged a pending test case aiming to overturn Roe v Wade, concerning a Mississippi law seeking to ban abortion after 15 weeks, which is due to be heard by the supreme court in October.
The law means that women in Texas will be placed in a similar position to women in Ireland prior to 2018, forcing those in need of a termination to travel to another state to obtain it. The ban will disproportionately affect those without the means to travel and the undocumented, who will face the prospect of continuing with an unwanted pregnancy or attempting to access an illegal abortion procedure or unregulated abortion pills online.
In 2018, the Irish people voted by a resounding two-thirds majority to liberalise the law on abortion in this country. It is important to remember, however, that the so-called Eighth Amendment – the constitutional article operating to ban abortion in all but the most extreme circumstances – was not replaced with an article enshrining the right to choose. Rather, it was replaced with a provision empowering the Oireachtas to legislate for the termination of pregnancy. It is true that the government published draft legislation in advance of the referendum and the public was well aware that the passing of the referendum would result in a legal right for a woman to terminate a pregnancy within the first 12 weeks, without restriction.
The supreme court's ruling has operated to immediately deprive women in the state from accessing their constitutionally protected right to choose
A right granted by law, however, can always be taken away. In the space of a generation in Ireland, the pendulum swung from a near-blanket ban on abortion to an unrestricted right to obtain abortion within 12 weeks and beyond in certain circumstances. There is no guarantee that the pendulum will not swing back in the future, as is occurring at this instant in the US.
Review clause
The legislation introduced in Ireland following the referendum – the Health (Regulation of Termination of Pregnancy) Act 2018 – contains a three-year review clause. An independent expert is to be appointed this year to make recommendations to the Minister for Health on the operation of the law. In anticipation of this review, advocacy groups have flagged a number of problems with the current state of our law: the lack of provision for safe access zones to allow pregnant people to access services without harassment; the stipulated three-day waiting period that must be undergone before an abortion can be performed, which may operate to push a woman out of the 12-week unrestricted period; and the practical barriers that exist to accessing abortion care pointed out by the National Women’s Council, including that only one in 10 GPs and half of maternity hospitals are providing abortion services.
The whole context of abortion provision in Ireland also needs to be looked at. The Citizens’ Assembly on the Eighth Amendment made a number of ancillary recommendations, including that improvements should be made in sexual health and relationship education. The religious patronage of so many schools in this country, and the Catholic Church’s position on contraceptives, makes this a real issue.
The US supreme court in its majority judgment stressed that it was not drawing any conclusion on the constitutionality of the Texas law. There is nothing to prevent further challenges to it which may succeed. In failing to preserve the status quo, however, the supreme court’s ruling has operated to immediately deprive women in the state from accessing their constitutionally protected right to choose. It also heightens fears that the court will be amenable to overturning Roe v Wade in the upcoming challenge to Mississippi’s abortion laws.
The plight of all those currently experiencing a crisis pregnancy in Texas, or who will in the future, serves as a stark reminder for us in Ireland that hard-won rights can be stripped away all too easily. Those who support a woman’s right to choose must bear this in mind as we approach the imminent review of our own law.