Written By – Astha Krishna
Texas law called the Texas Heartbeat Act, that bans abortion after six weeks, is said to have caused unconstitutional chaos by infringing the legal right to abortion of women acknowledged in the landmark case of Roe v wade. To understand the implications of the novel draconian law enacted by the state of Texas, it is imperative to look at the ruling of the Supreme Court in the case of Roe v Wade. This case devises a trimester system that allows American Women to have an abortion in the initial three months of pregnancy, thereby giving them an absolute right to abortion in the first trimester. In the second trimester, which is considered a little more risky by the experts, some form of government regulation is imposed as safety and health measures for a safe and hygienic termination of pregnancy. The last trimester, in which the fetus develops to the point of being capable of living outside the womb, abortion is prohibited and the states may restrict the procedure of termination of pregnancy. However, the case also established that abortion could be obtained in the final trimester despite the legal ban if medical practitioners certify that obtaining the same is necessary in order to save the life or health of the woman.
The Texas anti-abortion law goes against the precedent set by the case of Roe v Wade and bans most abortions after six weeks of pregnancy, thereby robbing the women of the state of their constitutional right to have an abortion. According to Section 171.204 of the act, abortion post the stage of detection of fetal heartbeat is prohibited. The language of the provision is vague, as it does not define what constitutes ‘heartbeat’. American medical practitioners are of the view that the term ‘heartbeat’ is misleading and the cardiac activity being detected at this stage is merely a portion of fetal tissue that grows on to become the heart of the embryo. The heart is not fully formed yet and detecting the cardiac activity should not be made the criteria for a viable pregnancy. This initial cardiac activity typically takes around 5 to 6 weeks to be detected post which the state of Texas prohibits legal abortion. The threshold of six weeks is too early to get an abortion, as most women do not know they are pregnant at that point of time. By the time a pregnant woman misses her period, she is four weeks pregnant. This implies that a woman, under the Texas law, would have about two weeks to acknowledge her symptoms, detect the pregnancy and make the decision of either continuing with or terminating the pregnancy. Forcing the women to detect the pregnancy and make a decision about the same in a rush is violative of the right of personal privacy that includes the choice of making reproductive decisions, as upheld in the case of Roe v wade.
Furthermore, Section 171.205 of the act provides for an exception and allows abortion post the six-week time limit in cases of medical emergency. However, the vague language of the provision does not cover every instance of medical emergency where health of a woman might be at risk. The draconian provision of the act and the possibility of criminal action will bar the medical practitioners to interpret the term ‘medical emergency’ liberally. In addition to this, the exception does not include the pregnancies arising out of cases of rape and incest either.
The act is draconian and unconstitutional in nature because it strives to regulate the bodily integrity of women and controls their reproductive decision making power. It explicitly disregards the consent of a pregnant woman to have an abortion as a right to choice under section 171.208(e) (6), according to the wordings of which the consent of the unborn child’s mother to the abortion cannot be a defense to the action brought for obtaining an abortion which is prohibited. Moreover, the act prima facie seems to ban abortion after the detection of cardiac activity. A layman will assume that the law allows abortion before the six week period or when the fetal heartbeat has not been formed yet. However, Section 171.206 of the act explicitly states that the amendment “does not create or recognize a right to abortion before a fetal heartbeat is detected”. The addition of the provision in vague terms opens up the possibility of bringing an action against even those abortion procedures, which were done within the six week period, i.e., before the detection of fetal heartbeat. The uncertainty and vagueness around the provision can be extreme as it can be interpreted to prohibit the access to abortion in Texas absolutely.
Apart from regulating women’s right to have access to abortion, the law also enforces the ban with a very uncommon approach by empowering private citizens, other than a state employee/officer, to sue “anyone who aids and abets” an abortion and bring a civil action against them. This includes an action against the medical practitioner or anyone who knowingly engages in conduct that will aid or abet the inducement of abortion like a cab driver. The act further states that the successful claimant will be awarded statutory damages of not less than $10,000 for each abortion defendant performed or aided in. The fact that Texas law deputized private citizens to sue law violators instead of state officials made the question before the Supreme Court of the United States ‘Whether the act can be challenged in the court’ and not ‘Whether the act is constitutional’. By a majority of 5:4, the Supreme Court allowed the enactment of the heartbeat act by Texas, thereby violating the right to abortion of women. Texas circumvented the existing US abortion laws and the precedent set in the case of Roe v Wade by using an unusual enforcement system. The legislation will create insuperable hurdles for the vulnerable populations to access abortions like teenagers, who often do not realize they are pregnant until later in a pregnancy; low income people, who will find it difficult to cover the cost of procedure and people of color or undocumented immigrants, who will face problems in travelling to other states to get access to legal abortions. The draconian law not only betrays the right of women recognized by Roe v Wade decision but also turns Texas into a surveillance state thereby trampling the right to privacy of everyone from the medical practitioners performing the abortion procedure to the neighbor giving a pregnant woman a ride to the clinic. If anyone calls this freedom in 21st century then they do not know the meaning of the word.