Claire ’24, Kaelen ’23 and Evaa ’23
Suppose you live in Texas and found out you were pregnant. Would you want to carry on with the pregnancy? Under the new “heartbeat law” in Texas, the choice is made for you; the law prohibits people with female reproductive organs from having abortions after a heartbeat has been detected, which, in most cases, is five to six weeks.
This new “heartbeat law” left abortion rights advocates and many doctors outraged, due to its unconstitutionality under the Supreme Court precedent, Roe v. Wade, which states that people with female reproductive organs have the right to access abortion as a function of their right to privacy and bodily autonomy. The 1992 case Planned Parenthood v. Casey later clarified that Roe v. Wade applied to abortions performed before a fetus was viable, which is around 21 to 23 weeks of pregnancy, deeming any ban on abortions applying to pre-viable pregnancies are unconstitutional.
So what makes this “heartbeat law” different from the other abortion laws that have been proposed and blocked by the Supreme Court? The answer is the unconventional mechanism of the Texas law, which gives private citizens the right to sue anyone who aids or performs an abortion.
Historically, state laws that ban or restrict abortions have been followed by a lawsuit in the federal court due. The individual or organization filing the lawsuit petitions the court to enjoin the law by issuing a preliminary injunction, which stops the law from going into effect until the lawsuit is granted its final order. In most cases, the courts issue the injunction. However, the strategy behind this law, which gives enforcement power to private companies and citizens rather than the government itself, makes it difficult to injunct, as even determining who to injunct is a challenge. Because of this, United States Courts have been unable to enjoin it. Because private companies and citizens, rather than the government, are responsible for enforcing the law, determining who to injunct is a challenge.
With a vote of five to four, the Supreme Court voted to not enjoin the recent Texas law, allowing it to go into effect. However, it is likely to return to the Supreme Court through future lawsuits by abortion providers even the Justice Department itself.
The “heartbeat law” was temporarily blocked on Oct. 6, 2021 by Federal Judge Robert Pittman, who ruled the law unconstitutional. However, two days later, a panel of Fifth Circuit Justices allowed the law to pass again after hearing Texas attorneys’ defense for it to stay. The Biden Administration has since requested a block on the abortion ban until the Supreme Court grants its final order.
Mississippi has asked the Supreme Court to overturn Roe v. Wade and because this heartbeat bill is the most aggressive anti-abortion law since the 1970s, there is a chance that it will reflect how the next Supreme Court term handles Roe v. Wade. This might lead to the overturn of Roe V. Wade and many more “heartbeat laws” being issued.
IN U.S. HISTORY
Abortion has not only become a highly politicized topic in recent years, but has existed in the United States since its founding.
Until the mid-1800s, abortions were allowed under common law in the United States before the mother could feel the fetus moving.
However, in the 1850s, the campaign to criminalize abortion began, predominately led by physicians in the American Medical Association who pushed for state laws restricting abortions. This campaign was partly motivated by professional reasons, as doctors hoped that criminalizing abortions would establish the superiority of medical doctors over the midwives who were carrying out most abortions. However, this campaign was also motivated by anti-feminist sentiment to protest the shifting roles of women who were becoming more involved in society and in the workforce.
By 1880, most states had passed laws restricting abortions, which was furthered in 1873 by the Comstock Law which banned items, such as abortion drugs, that were used to carry out abortions. This effectively criminalized abortion.
From the late 1800s to 1972, abortions were a criminal offense, yet many people continued to have them through illegal abortion clinics, and sometimes dangerous measures. Particularly, during the Great Depression (1929-1933), abortion rates increased due to the economic burden of having children.
In the 1960s, as the feminist movement gained momentum, reproductive freedom became a central part of the discussion surrounding women’s rights, culminating in the Supreme Court ruling of Roe v. Wade.
IN THE COMMUNITY
The passing of the recent “heartbeat law” came as a shock to many Marlborough students, as news of it spread through social media stories and conversations between students at school. In a survey sent out to 9th-12th graders, many responses embodied emotions of outrage, fear and sadness.
“The bill is awful and the fact that it passed scares me. Abortion rights are human rights and the government should not be controlling what someone does with their body,” a student response said.
Several students argued that the act is directly unconstitutional, as it contradicts Roe v. Wade.
“This bill violates the constitution and the rights of women in general. It stripes away the privacy and bodily autonomy of women in Texas,” a student response said. “Morality aside, it is in direct violation of legal precedent and should be overturned immediately.”
Other students expressed their anger at the citizen-based reporting system that is included in the bill.
“I really hate it. It not only entirely ignores Roe v. Wade, it also allows private citizens to prosecute people going against this bill, eliminating the unbiased way that people are charged with breaking a law or going against a state bill,” another student response said.
Supporters of the abortion bill argue that because the unborn child is voiceless and unable to stand up for itself, it must be protected.
“The unborn child, oftentimes the most innocent party, is utterly voiceless,” a student response said. “I lean pro-life as I tend to support those with the least political power in a given circumstance, which, in this case, is quite plainly the unborn child.”
Other students want the bill to account for different conditions under which one would have an abortion.
“I think that if it would be reformed, this bill should include exceptions in cases of incest and rape, and outlaw abortions later into pregnancy,” a student response said.
A trend in responses indicated the widespread belief that it would be difficult for a person to detect a pregnancy before six weeks, meaning that the bill would outlaw almost all abortions due to the limited time frame.
“The fact that a woman can’t get an abortion after six weeks is absurd. Very few women know they’re even pregnant at that point,” a student response said.
“At minimum, they should make the time span much longer, as six weeks could possibly be a late period, and most people are unaware that they are pregnant at this point,” another student response said.
According to a study published in the Maternal Children’s Health Journal, the average gestational age of pregnancy awareness is 5.5 weeks. As the maternal age range decreases, the time it takes for a woman to realize she is pregnant increases. While the average gestational age of pregnancy awareness for a person aged 35-44 years is five weeks, the average for a person aged 15-19 is 6.6 weeks, around half a week after which abortion is not permitted.
While the Texas “heartbeat law” only applies to Texas residents, the new bill has prompted nationwide discussions surrounding the future of abortion legislation in the U.S., including at Marlborough, posing the question of what the future holds for the rights of women.
“The possibility that this act may lead to the overturn of Roe v. Wade is terrifying to me,” a student response said. “The bill is taking so many steps backwards in the fight for women’s rights.”