Texas’s Abortion Law: A Nail in the Coffin for Women’s Human and Reproductive Rights
By Sarthak Gupta
Photo Description- NEW YORK, NY - OCTOBER 02: Crowds gather in Foley Square for the Women's March on October 2, 2021, in New York City. The Women's March and other groups organized marches across the country to protest the new abortion law in Texas. (Photo by Yana Paskova/Getty Images)
In May 2021, the Texas legislature enacted S. B. 8 [‘fetal heartbeat (abortion) law’] which came into effect on September 1st, 2021. The fetal heartbeat (abortion) law prohibits physicians from performing abortions if they identify cardiac activity in an embryo, or even if it is months before a viable fetus develops, i.e. ‘first detectable heartbeat’. In this article, the author examines the concerning issues in the fetal heartbeat (abortion) law, relevant judicial precedents and women’s rights[1] in the realm of international human rights law.
A concerning issue in the fetal heartbeat law is that the law establishes a ‘vigilante’ system in which any Texas resident can sue an abortion practitioner, as well as anyone who ‘aids and abets’ women seeking an abortion. If the person suing wins, they might receive a reward of at minimum $10,000, which would come from the defendants' purses. Abortion clinics in Texas have been forced to limit their abortion services to comply with the regulations due to this threat of lawsuits.
Establishing a private right to sue as an instrument for enforcing the law is not unprecedented. Numerous federal and state regulations authorize private lawsuits against offenders to reinforce government enforcement. Various environmental laws, for instance, the Clean Air Act, allow citizens to initiate “citizen suits” in order to obtain court injunctions to cease and cure pollution. These statutes, like the fetal heartbeat (abortion) law, provide attorneys' fees to succeeding litigants. However, the environmental plaintiffs, unlike those in fetal heartbeat (abortion) law, do not get financial compensation for their actions until they have been directly damaged from the environment pollutant. Furthermore, fetal heartbeat (abortion) law doesn’t have any safeguards on false claims and thus exoneration imposes financial anguish on defendants. This would further motivate the private party to interfere with a women's private bodily decisions excessively in order to gain reward. The notion of "private non-delegation" was introduced in the Cartel v. Cartel Coal Company case, in which the delegation of a critical governmental function to a private institution with insufficient protections was determined to be a violation of the Fifth and 14th Amendments' due process provisions.
Another concern with the fetal heartbeat (abortion) law is that it will have a disproportionate effect on specific sections of women. Texas’s women can still get abortions past six weeks in other states where there is no such restriction. This alternative, however, will not be realistic for all women, as those with fewer resources or who cannot take time off from work may not be in a position to travel to another state. According to a report published in 2019, up to 70% of abortions in Texas were performed on women of color. Thus, women from low-income households, women of color, and undocumented women will disproportionately bear the burden of this legislation.
Another crucial dimension is that, the fetal heartbeat (abortion) law privatized the enforcement in an incredibly Machiavellian approach intended at intimidating practitioners into conformity without enabling judicial review. Any Texas state or municipality official is restricted from implementing or intending to enforce the abortion limitations under the fetal heartbeat (abortion) law. Abortion providers lost their right to oppose the legislation prior to being sued since there was no government defendant to sue. The fetal heartbeat (abortion) law has made it extremely difficult for the courts to overturn the law with initiating reliance on citizens rather than state officials to enforce it. Therefore, recently the challenge before the Supreme Court was not whether the fetal heartbeat (abortion) law is constitutional, but rather whether it can be challenged in court. Texas has emerged as a paradigm for other states attempting to exploit the private citizen enforcement gap to escape judicial intervention. What is more troubling is that private citizens initiating a challenge are not obliged to present any evidence that the abortion occurred beyond six weeks of pregnancy, which means that even legal abortions might be vulnerable to such claims.
The Supreme Court of the United State of America (SCOTUS) declared with a 7-2 majority in Roe v Wade (1973) that any disproportionate restriction of abortion violated the 14th Amendment of the Constitution, which ensures due process of law. Despite many attempts to reverse the decision, Roe v Wade has remained the precedent for women's reproductive autonomy. Further, Planned Parenthood v Casey (1992) established that laws prohibiting abortion are unconstitutional if they impose an ‘unreasonable burden’ on a woman seeking an abortion before the fetus is viable. The constitutionally established threshold of "fetus viability" has been explicitly violated by the fetal heartbeat (abortion) law. Furthermore, the fetal heartbeat (abortion) law violates Section 1 of the 14th Amendment, which provides the right to personal liberty until it is constrained by due process of law. The supremacy clause of the US Constitution is also violated when state law contradicts a federal provision. Following Roe’s jurisprudence in Whole Woman's Health v. Hellerstedt (2016), the Supreme Court ruled that two abortion restrictions in Texas at that time were unconstitutional because they would terminate most clinics in the state and impose an ‘undue burden’ on Texans pursuing safe access to legal abortions. This directly denounces the rationale of Roe’s ruling which held that abortion within the first six months of pregnancy is a constitutional right and leaves the door open to reconsider the implementation of Roe’s ruling.
The fetal heartbeat (abortion) law not only disrespects Roe’s rationale on the right to abortion but also blatantly attacks the human and reproductive rights of women. Article 12 of the Universal Declaration of Human Rights (UDHR) and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) recognize the right to privacy as a universally acknowledged human right. A woman's right to bodily autonomy and the freedom to make choices concerning reproductive functions is fundamental to her right to privacy, as asserted by the Working Group on Discrimination Against Women. The United Nations Human Rights Committee (HRC) in General Comment No. 36 has also stated that even though State Parties may enact legislation to restrict voluntary abortions, such regulations must not violate a pregnant woman's or girl's right to life or any of her other Covenant rights. Furthermore, Article 7 of the ICCPR states that any restriction on a woman's or girl’s ability to seek an abortion must not, inter alia, endanger their lives, expose them to bodily or mental anguish or suffering.
Moreover, the HRC in V.D.A. v. Argentina observed that oppressing a women’s access to abortion is a violation of their right to privacy under the ICCPR. According to treaty body jurisprudence, denying women access to abortion can constitute a breach of their rights to health, privacy, and, in some circumstances, the right to be free from cruel, inhumane, or humiliating treatment.
The vigilante system in the fetal heartbeat (abortion) law constitutes unnecessary arbitrary interference of women’s privacy. The HRC in General Comment 16 on the right to privacy states, that the phrase ‘arbitrary interference’ also extends to the protection of the right guaranteed by Article 17. According to the Committee, the term ‘arbitrary interference’ can also refer to intervention authorized by law. The inclusion of the notion of arbitrariness is intended to ensure that even legal interference is consistent with the Covenant's provisions, aims, and objectives, and is reasonable under the circumstances. Furthermore, the Special Rapporteur on Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment concluded that gathering information from women pursuing medical care or abortion for the intention of prosecution constitutes torture or ill-treatment under the United Nations Convention against Torture. The fetal heartbeat (abortion) law has made it challenging for the courts to overthrow new legislation by relying on individuals instead of state personnel to enforce it.
Taking into consideration social-economic vulnerabilities, the Working Group on Discrimination Against Women recognized that in countries where abortion is prohibited by law or otherwise unavailable, women with limited resources are forced to depend on unsafe practitioners and abortion methods; safe termination of a pregnancy is a prerogative of the privileged. The same observation was reiterated by the Committee on the Elimination of Discrimination Against Women when they acknowledged that rural women are more vulnerable than urban women, with the latter being forced to use unsafe abortion practices, placing their lives and health at risk. The Committee on the Rights of the Child, concerning adolescent abortion, recommended to outlaw abortion to make sure that girls have access to protected abortion and post-abortion services.
It is pertinent to note that the fetal heartbeat (abortion) law doesn’t specify any exception for rape survivors. Considering it is so straightforward to pursue legal action against anyone who aids or abets the abortion of such survivors, rape counselling centres are anxious about how long they will be able to support survivors after an assault. Any assistance they provide could come under the Act's broad interpretation of ‘aid,’ exposing them to risk of prosecution. With the growing incidence of rape cases reported in Texas each year, many rape survivors will have insufficient access to post-assault care.
The US Department of Justice (DOJ) has brought a challenge contending that the Texas fetal heartbeat (abortion) law violates the Supremacy Clause because it lacks any exception for incidents of rape and incest. The US Court of Appeals for the Fifth Circuit overturned the panel decision and upheld the law. Abortion providers and others made a last-ditch effort before the U.S. Supreme Court to prohibit the fetal heartbeat (abortion) law from being enforced, but it was refused. In Dobbs v. Jackson Women’s Health Organization, Mississippi's 15-week abortion prohibition will be reviewed and is the Supreme Court's next opportunity to reflect and observe Roe’s ruling. If other states follow the footsteps of Texas, women's reproductive rights, which have been embraced since Roe’s ruling, will be irreparably compromised.
[1] The Texas fetal heartbeat (abortion) law does not exclusively impact women, but may also be applicable to and impact other individuals including non-binary, transgender, and intersex individuals.
Bio:
Sarthak Gupta is an undergraduate B.A.; L.L.B law student at the Institute of Law, Nirma University, India. His scholastic interest follows Constitutional Law, Public Law, Human Rights & Gender Studies, and International Law.