WINDSOR TERRACE — In the two weeks since Texas passed a restrictive new abortion law that was cheered by the state’s Catholic bishops, a legal battle has ensued between state and federal governments.
The Biden administration followed through on its promise to pursue legal action on the legislation and sued Texas on Sept. 9.
[Related: Texas Bishops Applaud Supreme Court Ruling on Abortion Law]
The legislation, known as the Texas Heartbeat Act, is one of the strictest pieces of abortion legislation in the nation, prohibiting the deadly procedure after the detection of a ba- by’s heartbeat, which can be as early as six weeks into a pregnancy. The law does not include exemptions for rape or incest.
It went into effect Sept. 1, after the Supreme Court chose not to block the law.
U.S. Attorney General Merrick Garland called the legislation “clearly unconstitutional” in Sept. 9 remarks, citing that it is invalid under the Supremacy Clause and the Fourteenth Amendment and “violates the doctrine of intergovernmental immunity.”
Garland argued that the Texas Heartbeat Act conflicts with federal law by prohibiting U.S. agencies from carrying out their responsibilities related to abortion services, including programs that are part of the departments of Labor and Defense, the Office of Refugee Resettlement, and the Centers for Medicare and Medicaid Services.
In response to the federal lawsuit, Texas Gov. Greg Abbott’s spokeswoman Renae Eze told The Tablet in a statement on Sept. 13 that the governor is “confident that the courts will uphold and protect that right to life.
“The most precious freedom is life itself,” Eze said. “Texas passed a law that ensures that the life of every child with a heartbeat will be spared from the ravages of abortion.”
The law, signed by Abbott in May, is unique in that it prohibits state officials from enforcing the ban. Instead, it is enforced civilly. It allows private parties to sue an abortion provider or anyone who helped someone get an abortion after the limit, and to seek financial damages of up to $10,000 per defendant.
In response to the Texas legislation, New York Gov. Kathy Hochul on Sept. 13 called it a “travesty,” while touting her state as a nationwide “haven” for women seeking an abortion.
Hochul, who is Catholic, also announced new abortion initiatives in response. She directed the New York State Department of Health to launch a public information campaign on abortion rights that will include a patient bill of rights to be distributed in doctors’ offices.
She ordered the department to also follow up with healthcare providers to make sure they’re “equipped with the guidance they need,” and she pledged to update regulations so that medical abortions can be accessed through telemedicine.
“Abortion access is safe in New York; the rights of those who are seeking abortion services will always be protected here,” Hochul said. She added that New York leaders like Senator Kirsten Gillibrand will continue to fight on a national level.
Hochul used the news conference as an opportunity to call out states that are looking at restrictive abortion legislation similar to Texas. There are at least 12 other states that have legislation banning abortions early in pregnancy, but they have all been blocked by courts.
Officials in Florida, including Gov. Ron DeSantis, have stated that they welcome pro-life legislation and expressed a desire to look more deeply into Texas’ law. Even though the Supreme Court chose not to block the law in its Sept. 1 vote, its ruling left the door open for the federal government’s lawsuit, and for Tex- as abortion providers to find alternative means of challenging it.
The nation’s high court explained that its decision was not a conclusion on the constitutionality of the Texas law, and “in no way limits other procedurally proper challenges” to the legislation. An unsigned opinion in the case even acknowledges the challengers of the law “raised serious questions” about its constitutionality.
President Joe Biden, a Catholic, was quick to attack the constitutionality of the legislation after it went into effect. He called it an “assault on a woman’s constitutional rights” established by Roe v. Wade. The landmark 1973 Supreme Court decision — protecting a woman’s right to get an abortion — holds that states can regulate abortions or prohibit them entirely in the third trimester, or week 27 in the pregnancy.
Texas bishops applauded the legislation that went into effect on Sept. 3.
The state’s 20 bishops together stated that they “celebrate” every life saved by it, and reiterated their stance that “abortion is not the answer.”
Why the Law Will Be Enforced In Civil, Not Criminal, Courts
In the nationwide debate over Texas’ restrictive new abortion law, one topic consistently mentioned is the unconventional way it will be enforced — using civil lawsuits instead of criminal law enforcement.
Earlier this week, Texas State Senator Bryan Hughes, the author of the bill, took to the op-ed pages of The Wall Street Journal to explain why this approach was chosen, and it boils down to a refusal by prosecutors to enforce laws regulating abortion.
Specifically, he called out the district attorneys of Dallas, Bexar, Nueces and Fort Bend counties, who he claims have stated their intention not to enforce such laws criminally.
“If officials sworn to enforce state laws preemptively decide they won’t do it, even when the laws are passed and ratified and have not been challenged in the courts, state legislators are obliged to get creative,” Hughes wrote on Sept. 12. “If we can’t depend on criminal enforcement … someone else must enforce the law.”
In this case that means private citizens enforcing the law through civil lawsuits.
Hughes notes in The Wall Street Journal piece that, in many other crimes — theft and criminal assault among them — the person wronged (the plaintiff ) can file a lawsuit. In the case of abortion, he says, the wronged party, the fetus, “has been extinguished.”
Beyond questions about the enforcement of the law, Hughes also used the op- ed as an opportunity to explain why he believes the legislation was necessary in the first place. It boils down to Roe v. Wade. “The Heartbeat Act was necessary because Roe v. Wade attempted to take the question of abortion out of the hands of American democracy,” Hughes wrote. “Like it or not, states will keep crafting unconventional means of regulating abortion until the Supreme Court puts the question back where it belongs.”
