In May 2021, the Texas legislature enacted an abortion law, the “Texas Heartbeat Act,” scheduled to go into effect on Sept. 1. Opponents challenged the law in court, seeking an injunction to keep it from going into effect. But a majority of the U.S. Supreme Court justices declined to issue the injunction and the law went into effect.

This led to an outcry among pro-abortion groups and politicians. President Joe Biden issued a statement including this claim: “This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century.”

To evaluate this statement, we begin with the decision in Roe v. Wade – a case that arose decades ago from a challenge to an earlier Texas abortion law.

In 1969, Norma McCorvey, using the pseudonym Jane Roe, challenged a Texas law that prohibited abortion except where continuing the pregnancy would threaten the mother’s life. It took some time for the challenge to get to the Supreme Court, but in 1973, the court ruled 7-2 that an implied right to privacy protected by the Constitution “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

The court said the right was not absolute, however. As a pregnancy advanced, the state’s interest in protecting an unborn child increased. Roe adopted a trimester scheme in which during the first three months of a pregnancy, the state could not prevent a doctor from performing an abortion. Over the rest of the pregnancy, the state would have greater latitude to prevent abortions as long as doing so did not threaten a woman’s health.

This holding may be surprising, since we have gotten used to essentially unlimited access to abortion. Why don’t more states prevent abortions after three months?

There are two major reasons.

First, on the same day as the Roe decision was issued, the court issued an opinion in Doe v. Bolton which construed the health exception required in Roe so broadly as to make it essentially impossible to prohibit abortion at any stage of pregnancy.

Second, in the 1992 decision Casey v. Planned Parenthood, the court revisited the question of whether the Constitution prohibits regulations of abortion. Although no particular decision could gain the support of a majority of the justices, the plurality opinion abandoned the trimester approach of Roe, substituting it instead with a new, more subjective, rule that the state could not enact laws that created an undue burden on a woman’s right to choose abortion.

That’s the basic backdrop for the Texas law.

Many people think of abortion laws as belonging to the realm of criminal law – i.e., laws punishing a doctor for performing an abortion, or perhaps health regulations on who may perform the procedure or under what conditions. The Texas law is different. It authorizes private citizens to bring a lawsuit for an injunction or damages against a doctor who performs an abortion of a child after the child’s heartbeat can be detected, or against someone who “aids and abets” the abortion, unless the abortion is performed in response to a medical emergency.

This type of law is common in other areas. Employees can sue employers over discrimination, or someone hurt in an accident can sue the person whose negligence caused the accident, etc. Sometimes these types of laws allow a person to vindicate the rights of others, just as the Supreme Court has allowed abortion providers to challenge abortion regulations on behalf of their patients.

As discussed in a previous post, this aspect of the Texas law is probably the reason the court did not prevent the law from going into effect.

The Texas law, however, includes a caveat that a defendant in one of these lawsuits can assert as a defense “that the relief sought by the claimant will impose an undue burden on that woman or that group of women seeking an abortion.” So the law tries to avoid directly confronting Roe and Casey.

The real possibility of overturning Roe v. Wade is found in a case pending with the Supreme Court, Dobbs v. Jackson Women’s Health Organization. That case involves a Mississippi law prohibiting abortions after 15 weeks of pregnancy. In agreeing to hear the case, the justices said they would be addressing the question of “whether all pre-viability bans on elective abortions violate the Constitution.”

This means directly considering whether the earlier abortion precedents are still valid.

It’s not clear whether the Supreme Court believed in 1973 that it was settling the question of the legal status of abortion, but its decision in Roe did not have that effect. Since that time, there has been consistent litigation over whether the states (and sometimes the federal government) could restrict, regulate or discourage abortion in a wide variety of ways. Some of the regulations (such as how aborted fetuses are to be disposed of, or limitations on public funding of abortion) have been upheld and others (like health standards for abortion clinics or spousal notification requirements) have been struck down During this time, the possibility that the court might allow limits has been a rallying cry for supporters of legal abortion.

The Texas and Mississippi cases are part of a long line of such cases. Whether the latter will lead to a more definitive result remains to be seen.