Texas’s Unconstitutional Abortion Ban

In 1965, the world was a very different place. Not only was abortion illegal, but the use of contraceptives were illegal in many places as well. Restrictive rules regarding the use of contraceptives were prominent throughout the country. In Connecticut, this rule was enforced against two doctors, Griswold and Buxton, who opened a birth control clinic. In the case of Griswold v. Connecticut, the doctors challenged the constitutionality of the Connecticut statute under the Fourteenth Amendment, and the case made its way up to the Supreme Court.

What is the right to privacy?

The Supreme Court held in this landmark case that there is an “implied right to privacy” throughout the Bill of Rights. The Court pointed to the various rights of privacy that are guaranteed in the Constitution, such as the right to assembly, the right to consent before quartering soldiers, the right against unreasonable searches and seizures, and the right against self-incrimination. The Court noted that the Framers held privacy in high regard, as the Framers were frustrated with England’s unnecessary intrusion into public life. They held near and dear the belief that the government should be in private less as little as possible. Thus, the Court held that the penumbras and emanations of privacy in the Constitution extends to intimate relationships and that there is a protected zone of privacy when it comes to the marital bedroom, intimate relations, and childrearing.

Roe v. Wade Decision

In 1973, the court used this right to privacy to determine that it protects the decision to get an abortion. Ironically, Roe v. Wade was a Texas case that challenged Texas’s abortion statute, which was essentially a ban on all abortions with the exception to save the mother’s life. These strict statutes did not come into effect until the latter part of the 19th century. The 1973 Texas abortion statute was designed to prevent illicit sexual conduct. The state of Texas argued that there was an important state interest in prenatal life. Texas further argued that a fetus is a person within the language of the Fourteenth Amendment.

The Court rejected Texas’s argument. The Constitution only makes three references to a person. Nobody knows when life truly begins, there are many religious and philosophical views on when life starts. The Court held that the right to privacy that is inferred by the Constitution extends to the decision of a woman to terminate her pregnancy. This is a private, personal, medical decision that should be free from extensive government intrusion. However, because the state has a compelling state interest in prenatal life, the state may regulate abortion after the first trimester of pregnancy, when a fetus becomes viable.

Some of even the most pro-choice scholars believe that Roe may have been the wrong way to decide abortion rights in this country. Even Justice Ruth Bader Ginsburg argued that the right to abortion should have been decided by the legislature and codified slowly, rather than decided on a right to privacy case. The critics may be right, but it is undeniable that Roe v. Wade made abortion access easier for the women of the United States. Wealthy and well-connected women in a sense always had a right to abortion, but Roe made it possible for lower-income women to have this choice as well. Roe saved the lives of women who would have otherwise been killed or seriously injured from dangerous back alley abortions.

Roe was decided by a conservative majority, and the decision did not fall neatly along party lines. Abortion would not become a heavily partisan issue until many years later in a Republican effort to win the vote of devout Christians, specifically Catholics.

Nineteen years after it was decided, Roe faced its first challenge in 1992, in the case of Planned Parenthood v. Casey. Pennsylvania passed the “Abortion Control Act,” which had five provisions:

1. Women must give informed consent
2. Women must receive state published information
3. For minors, a parent must give their informed consent
4. Married women must notify their husbands
5. Providers must keep records and report information

These were challenged under Roe. In the decision, the Casey court limited abortion access. Only the husband notification portion of the act was struck down. Casey had three holdings which are as follows:

1. A woman has the right to abort a non-viable fetus without undue state interference.
2. States can restrict abortions after viability with exceptions for pregnancies that endanger a woman’s health or life.
3. States have a legitimate interest in protecting a pregnant woman’s health and the life of a fetus.

The Court held that the standard for abortion access is one of undue burden. States cannot place an undue burden on a woman seeking abortion access. An undue burden is defined as a substantial obstacle.

Texas S.B.8

In the year 2021, the state of Texas, the second-largest by population in the country, only has 28 abortion clinics for over 14 million women. Abortion rates have been steadily declining since Roe, mostly due to wide access to different types of contraceptives. According to the CDC, 91 percent of all abortions are performed in the first trimester and 98.7 percent of abortions are performed during the first 20 weeks.

Texas’s abortion ban at six weeks is a remarkable disregard for 50 years of precedent and constitutional law. The majority of women do not know they are pregnant at six weeks, especially women with an irregular cycle. Even if a woman was able to know she was pregnant before six weeks, by the time she was able to go to a clinic, it would be too late. This is an outright ban and is directly opposed to Casey as to call this an undue burden is a huge understatement. To top it off, the Texas statute allows vigilantes to report women or doctors who get or perform an abortion, and anyone who “aids and abets” abortion access. This “aiding and abetting” could include someone as passive as an Uber driver. The law would allow citizens to sue those to receive, perform, or aid and abet abortions in civil court. The law allows the plaintiffs in those cases to recover attorney’s fees, a rarity in American jurisprudence, essentially allowing random citizens without standing to sue others for free. It’s an absurd law that flies in the face of constitutional law, precedent, and substantive due process.

The Texas legislature is not ignorant. This law is unconstitutional and impractical, which is precisely the point. Texas lawmakers intended for this law to reach the Supreme Court in an effort to overturn Roe.

The Supreme Court decided 5-4 to deny the application for injunctive relief filed against this law. However, the majority argued that while they did not decide on constitutional grounds, they denied the application because it is unclear who is tasked with enforcing the law, and that is unclear under existing precedent whether the Court can issue an injunction against state judges who are asked to decide a lawsuit under the Texas law. The private citizen enforcement of the law threw a wrench in the Supreme Court’s decision, and the conservative justices simply did not know what to do with this law and allowed it to go through.

In December, the Supreme Court will hear oral arguments from a case out of Mississippi, Dobbs v. Jackson Women’s Health.  This case is more forthcoming than the Texas abortion ban as it asks directly for the court to overturn Roe v. Wade. The question presented in this case is whether all pre-viability prohibitions on abortions are unconstitutional. The future of a woman’s right to choose in this country looks bleak. Fifteen states and the District of Columbia have state laws that protect the right to abortion, so abortion will always be safe and legal for a select few in this country. But for the most vulnerable, impoverished, and low-income women in conservative states, their access to reproductive healthcare is gone