Will the Supreme Court reconsider Roe vs. Wade?

Ken Garten
Legal perspectives
Ken Garten

In 1973, the United States Supreme Court held in Roe v. Wade that abortion was a constitutional right that could not be prohibited by the governments for nonviable fetuses – those that could not survive outside the womb -– at 24 weeks or less. 

Since then, the abortion wars have been raging between the pro-life and pro-choice political circles in the legislative and judicial arena. 

These battles typically arise when states pass laws that restrict or effectively eliminate the constitutional right to abortion announced in Roe. 

Commonly, such a law will be passed, and pro-choice forces will file a federal lawsuit seeking to have it struck down as unconstitutional under Roe. 

The latest raging abortion controversy is underway in Texas, with its recently enacted Senate Bill 8, the latest foray into battle by pro-life forces seeking to frustrate the policy of Roe, and legislate legal abortions out of existence. 

S.B. 8 is what is sometimes referred to as a “heartbeat” bill, which prohibits abortion after a fetal heartbeat can be detected, typically six weeks into a pregnancy, and often before a woman even knows she is pregnant. Heartbeat bills such as this have been previously struck down as violative of a woman’s constitutional right to terminate a pregnancy up until the 24-week viability period established by Roe. 

Texas State Senator Bryan Hughes, one of the principal proponents of S.B. 8, stated quite directly that Texas intended “to find a way to pass a heartbeat bill that was going to be upheld,” thereby effectively legislating abortions out of existence. 

Specifically, S.B. 8 creates an attempt to remove the remedies to oppose abortion from being a matter of “state action,” in that constitutional rights of individuals only provide protection from infringement by the government.  

Accordingly, S.B. 8 provides that, instead of relying on government law enforcement, ordinary citizens are conferred with a right to sue anyone who performs a prohibited abortion, or aids or abets such an abortion, such as by working at a clinic that provides abortions, giving someone a ride to get an abortion, or paying for or reimbursing payment for an abortion, such as by a health insurer or otherwise. The remedies that a private citizen can obtain by initiating such a lawsuit to enforce S.B. 8 against a party include an injunction to prevent the abortion, up to $10,000 in monetary damages for each abortion, and attorney fees. 

The Texas scheme essentially deputizes ordinary citizens so they can profit by initiating civil lawsuits and obtaining monetary damages against those who may be deemed to violate the law. 

By this novel scheme, the stated attempt of the legislation is to avoid it being struck down as unconstitutional because it is not enforced by the government, but enforcement power is conferred on any citizen who sees fit to file a lawsuit against another citizen claiming violation of the law and seeking damages and an injunction. 

Thus, no state action. 

Oftentimes, lawsuits challenging restrictions on abortion that are claimed to be unconstitutional under Roe are initiated by abortion providers, pro-choice groups or organizations, or a person or persons whose right to an abortion are adversely affected by such legislation. 

In this case, however, the United States itself just this week sued the state of Texas, seeking to have the law struck down on a variety of legal bases, including that the provision for a private cause of action by private citizens, instead of government enforcement, is still deemed “state action.”  

Other theories espoused in the federal government’s lawsuit include that the state law being attacked violates the Supremacy Clause of the Constitution and the federal pre-emption doctrine, in that it directly contradicts many federal laws in place under which the government is required in a number of settings to provide services and funding for abortion programs. After all, states aren’t free to pass state laws that violate federal laws. 

And so it appears that the abortion issue may be at a crossroads. With the shift of the Supreme Court toward the conservative side, the heightening of tensions and controversy between pro-life and pro-choice forces, the extreme and bizarre provisions and effect of Texas S.B. 8, and the fact that the United States government is the party filing the judicial challenge to this law, it may be time for the Supreme Court to look this case straight in the eye and let the world know if Roe v. Wade still stands, or if it will be struck down or modified by the court so that legislative attempts to end abortion might hereafter prevail. 

We shall see. 

Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com.