Governor Greg Abbott and the Legislature Pause Abortions in Texas

Abortion advocates are stunned and angered after the Supreme Court declined to enjoin the Texas Heartbeat Act from going into effect on September 1. This Act works around common obstacles to pro-life legislation by empowering private citizens to sue abortion providers and others connected with an abortion.

The law prohibits abortion after a fetal heartbeat is detected. The Act defines fetal heartbeat as “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” There is an exception which allows for an abortion in the case of medical emergency.

The Justices voted 5–4 to deny the application for injunctive relief. The Court noted that there are “serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. …  And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”

First, the law has not been declared constitutional. The controlling precedent is that of Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, both of which ensure a right to abortion in all 50 states. The law may be unconstitutional, but the Court is unable to declare it so, because it believes it lacks the authority to rule on the law. The defendants in the lawsuit assert that they have no plan to enforce the Texas law, so the Court may not intervene in that issue, and Texas claims “that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.” Finally, it is not clear whether the Court may “issue an injunction against state judges asked to decide a lawsuit under Texas’s law.” The law provides for private citizens to bring lawsuits in state court in order to avoid federal judicial review.

Chief Justice Roberts “would grant preliminary relief” in order to “consider whether a state can avoid responsibility for its laws in such a manner.” He is unsure of whether judicial action is proper in these circumstances, and would like the District Court and Court of Appeals to develop such a consideration before the Supreme Court offers further judgment. Justice Breyer’s dissent quotes Planned Parenthood of Central Mo. v. Danforth, wherein the Court wrote that “since the State cannot regulate or proscribe abortion during the first stage … the State cannot delegate authority to any particular person … to prevent abortion during that same period.” Breyer, with whom Justices Sotomayor and Kagan join, finds persuasive the argument that Texas’s law does “precisely that.” Breyer, a pragmatist lawyer, does not understand why the delegation to any person, as opposed to one or a few persons, “should make a critical legal difference.” On his view, the constitutional right is still being abridged, and who abridges this right is irrelevant.

This temporary victory for the pro-life movement should offer hope. Although this decision to deny injunctive relief is procedural and may only be temporary, Dobbs v. Jackson Women’s Health Organization will attempt to resolve the constitutional question of whether all pre-viability prohibitions on elective abortions are unconstitutional.

Of note are subtle changes in legal perceptions of the unborn. In the “Definitions” section of the Texas Heartbeat Act, an unborn child is defined as “a human fetus or embryo in any stage of gestation from fertilization until birth.” Similarly, Professors Mary Ann Glendon and O. Carter Snead, of Harvard University and the University of Notre Dame, respectively, note in their amicus brief for Dobbs that abortion law “offers no comprehensive support for the vulnerable persons involved, including especially the unborn child and her mother.” Snead reminds us that abortion is for the service of “atomized individual wills” and “not well-designed to address the complex needs and wants of a community of embodied, vulnerable, and interdependent human persons.”

Zef Crnkovich is a senior from Falls Church, Virginia, majoring in classics. As a dispenser of (often accurate) hot takes, he kindly requests that you please send your own to

Photo credit: John Marino / Licensed under Creative Commons Attribution 2.0 Generic (CC BY 2.0) License