In early September something extremely important occurred in the US with regard to the future of abortion in that nation. It occurred at a time when the headlines in the UK were understandably focused on Afghanistan. As a consequence, while it appeared in some news reports here, it did not have the high profile that it might otherwise have had.
On 1 September a law came into force in Texas which, effectively, bans almost all abortions after about six weeks of pregnancy. This made Texas the state with the strictest abortion legislation in the US. The law is known as 'Texas Senate Bill 8', or 'SB8'. It seems set to radically change the legal situation in the US concerning abortion. Then, on 20 September, the Supreme Court set a date to hear a case involving Mississippi. It has been an historic month.
The Texas law is set against the background that has defined the US legal position on the subject of abortion for a generation. The legal position is framed by two key decisions which established abortion as a nationwide constitutional right: 'Roe v. Wade' in 1973 and also 'Planned Parenthood of Southeastern Pennsylvania v. Casey' (1992) – the other key Supreme Court ruling in this area. These laws have shaped the battleground.
Since these cases, advances in medical science have meant that the threshold of viability has moved earlier in a pregnancy. Consequently, babies that would have been considered non-viable outside the womb in 1973 now frequently survive. At the same time – and moving in the diametrically opposite direction – have been moves to extend the date of late-term abortions. These two factors have increased the intensity of conflict over the issue.
Abortion has raised deep and conflicting moral and constitutional questions in the US concerning the beginnings of life, personal freedom, and rights. For advocates of the 'Pro-Life' position, the central issue is the right to life of the unborn child. For those in favour of the 'Pro-Choice' position the matter centres on a women's reproductive rights.
The subject has become intensely politicized since 1973, with Democrats increasingly associated with the 'Pro-Choice' status quo and Republicans with the 'Pro-Life' push-back against this position. When George Bush senior ran for president in 1980, he opposed public funding for abortion, but did not call for an outright ban. At this time there were many politicians in both US parties who followed a similar 'middle way' on the subject of abortion.
However, when Bush became Reagan's running mate in 1980 he adopted Reagan's tougher stance. Reagan himself had similarly shifted since his time as governor of California, when he had supported an expansion of abortion rights. Trump later followed a similar trajectory, as he courted Republican support for a presidential campaign. This reflected the increasingly anti-abortion position in the GOP that developed during the 1980s and '90s and accelerated in the twenty-first century. This party-political characteristic has become even more pronounced in the increasingly divided US of the recent past; and has made any constructive dialogue between the proponents of the two positions almost impossible.
Recently, the three Supreme Court nominations of the Trump presidency have meant that there is now a conservative majority on this crucially important legal body. The latest of these was Amy Coney Barrett, in October 2020. Conservative and Catholic, it was felt at the time that this would prove to be a highly significant appointment, if the subject of women's reproductive rights came before the Supreme Court. And, indeed, this has proved to be the case.
The significance of 'SB8'
The date chosen for the legal threshold in 'SB8' is once cardiac activity can be detected in the embryo by ultrasound. Technically this is not actually a true heartbeat, since the valves of the heart have not yet formed at this point. Nevertheless, it is often referred to as a 'heartbeat threshold.' The detection of such a 'heartbeat' usually occurs about six weeks into a pregnancy.
A woman is four weeks pregnant by the time she misses her period. The Texas law then gives a woman two weeks from this date to confirm that she is pregnant and have the legal right to an abortion. An abortion after this would likely be after the threshold of cardiac activity in the foetus and would, consequently, be illegal.
The six-week threshold is eighteen weeks earlier than that set by 'Roe v. Wade,' that allows abortion up until about twenty-four weeks. It is estimated that, before 'SB8,' about 85% of abortions in Texas occurred after the six week threshold. There is also a striking racial feature, since the Guttmacher Institute estimates that about 70% of all abortions in Texas in 2019 were provided to 'women of color.'
'SB8' does not make exceptions in cases of rape or incest. However, it does permit abortions if the pregnancy endangers the life of the mother or is likely to lead to "substantial and irreversible impairment of a major bodily function [of the mother]."
'SB8' was signed into law, by Republican state Governor Greg Abbott, on 19 May 2021, with the provision that it would become effective from 1 September 2021. The law's official title gives an insight into both its intention and the strategy employed in order to achieve it: "Relating to abortion, including abortions after detection of an unborn child's heartbeat; authorizing a private civil right of action."
This latter point is crucial and is the single most significant defining feature in 'SB8.' This is because the law does not authorize enforcement by state officials. In fact, they are barred from enforcing its provisions. Instead, it deputizes private citizens to sue anyone who performs an abortion (beyond the 'heartbeat threshold') or who "aids and abets" such an abortion. Plaintiffs without any connection to either the patient or the abortion clinic in question are, consequently, empowered to sue and to recover their legal fees – as well as $10,000 – if they succeed in court.
The role of the US Supreme Court
It should be noted that, while other US states have passed similar laws (currently facing legal challenges), the law passed in Texas is the first to come into effect. This is because, by a vote of five to four, the Supreme Court refused to block the law's implementation, which occurred a little before midnight on Wednesday 1 September.
This was a hugely important ruling and the decision was related directly to the way by which the Texas law is framed in its implementation. It is usual for any lawsuit which aims to block a law as unconstitutional to name a state official as a defendant. For example, in the case of 'Roe v. Wade' (1973) 'Wade' was Henry Wade, the district attorney of Dallas county, Texas, where Roe lived. 'Jane Roe' was the name used to protect the identity of the plaintiff, Norma McCorvey who died in 2017.
However, in the case of 'SB8,' there is no such official defendant. Any citizen is empowered to act by this law. Consequently, the Supreme Court decided that the constitutionality of the measure could not be decided and so allowed its passage into law.
As a result, a law which challenges the current constitutional status quo (ie 'Roe v. Wade') has side-stepped the ultimate test of constitutionality before the Supreme Court. This was clearly exactly what 'SB8' was designed to do. As such, its framing has been highly effective and the 'Pro-Life' position has gained a major victory. Whether such a Supreme Court decision would have gone this way in less politically polarized times is a moot point.
Other states are set to follow Texas. Georgia, Mississippi, Kentucky and Ohio have all passed so-called 'heartbeat laws.' However, these states face legal challenges because they have not been framed in the way that 'SB8' was in Texas. Other states may now revise their legislation to mirror the strategy successfully deployed in Texas. Arkansas, Florida, South Carolina and South Dakota are considering doing this. Kentucky, Louisiana, Oklahoma, Ohio and others are expected to follow them.
The next legal challenge will involve the state of Mississippi. On 20 September the Supreme Court announced that the case of 'Dobbs v. Jackson Women's Health Organisation' will be granted a hearing before the Supreme Court on 1 December 2021. This concerns a 2018 state law (the 'Gestational Age Act') that would ban abortions after the fifteenth week of pregnancy, except in "medical emergencies or for severe fetal abnormality" (no exceptions for rape or incest). This will be the most important abortion-related case that the court has heard since 1992.
While 'Pro-Life' advocates will be encouraged by this progress, the strategy employed by 'SB8' is not without its complications. It is difficult to imagine how the constitutionality of such an emotive issue can be side-stepped in the long-run. In many ways both the supporters and opponents of 'Roe v. Wade' need their day in court, in order to really address this hugely important issue and subject the decision of 1973 (and 1992) to the scrutiny of the world of 2021, or 2022.
With regard to the method deployed so effectively in 'SB8,' we could now see Democrat-run states use the same strategy to confront gun ownership or environmental issues. A 'sword' forged in Texas might be wielded very differently in New York or Massachusetts. In so doing, the 'SB8' strategy could significantly undermine constitutional legality. There is talk of new federal legislation designed to remove abortion from state jurisdiction, but this would be extremely controversial in the US context. However, the Texas situation may well trigger such a move.
More pertinent to the actual issue at the centre of 'SB8' is that of the kind of society that Republican states will construct around it. Whatever one's beliefs around this highly emotive subject, a situation of restricted rights to abortion has clear implications for preventative strategies, like in the areas of education or access to family planning, and for safeguarding the health of vulnerable pregnant women via wider access to health care - issues which, to be frank, rarely feature on Republican agendas.
The prospect of a nation after 'Roe v. Wade' also raises questions beyond the narrow issue of abortion itself - extremely important as that undoubtedly is. Do the Republicans have something to say about that wider context? These wider issues cannot be ignored and Christians in the US will need to address them too.
Martyn Whittock is an evangelical and a Licensed Lay Minister in the Church of England. As an historian and author, or co-author, of fifty-two books, his work covers a wide range of historical and theological themes. In addition, as a commentator and columnist, he has written for a number of print and online news platforms; has been interviewed on radio shows exploring the interaction of faith and politics; and appeared on Sky News discussing political events in the USA. His most recent books include: Trump and the Puritans (2020), The Secret History of Soviet Russia's Police State (2020), Daughters of Eve (2021) and Jesus the Unauthorized Biography (2021).