Abortion Laws and Civil Unrest: A Peek into Modern Abortion Legislation

By: Camille Nooney

Edited by: Anna Westfall and Dheven Unni

Abortion has been a divisive issue for generations. After Roe v. Wade made it legal, without excessive government restrictions, on a national level, many thought this debate about the government's place in determining abortion morality or legality had come to somewhat of an end. However, in recent years state legislatures have continued to move towards more and more abortion restrictions. These state laws culminated recently into Texas Senate Bill 8, which prevents physicians from providing any abortion care once, "cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac".[1] This can happen as early as 5-6 weeks into pregnancy: often, people are not even aware that they are pregnant at this point. 

Though many cases surrounding the legality of the bill have been taken to the courts and some have made it to the Supreme Court, Senate Bill 8 has been able to escape a lot of judicial review because of how it is enforced. This bill is not enforced by state officials; state officials are not allowed to enforce the bill. Instead, private citizens must sue those who violate the bill. This has made it difficult to determine whether the law is unconstitutional because when the Supreme Court deems a law unconstitutional, the Court blocks its enforcement as opposed to the law itself.[2] Even conservative judges who voted against the temporary blocking of Senate Bill 8 on September 2 have critiqued the interesting manner of enforcing Senate Bill 8. For example, Brett Kavanaugh, a conservative justice appointed by President Donald J. Trump, spoke out on Senate Bill 8, stating: "There's a loophole that's been exploited here or used here”.[3] Kavanaugh further criticized this "loophole" by stating that it could be used to take away other constitutional rights such as freedom of speech or religion.[3] Elena Kagan also critiqued the “loop hole” the law utilizes by speaking on the dangerous precedent it could set for other controversial issues she states, “There's nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don't like, go ahead”.[8] This statement by Justice Kagan further emphasizes the dangerous nature of Senate Bill 8. On September 2, 2021, in a tight 4-5 vote, the Supreme Court rejected the blocking of Senate Bill 8. Yet, this rejection was based on technical aspects of the law and not on whether the law is constitutional.[3] 

As tensions are rising surrounding Texas's legislation, Ohio has recently proposed an even harsher abortion bill that goes further than Senate Bill 8, titled House Bill 480. Similarly, House Bill 480 also specifies that state officials will not enforce it. The bill allows for civil penalties of at least $10,000 for anyone who performs or attempts an abortion. Unlike Texas's bill, however, Ohio's bill does not allow abortions before six weeks: it is a total abortion ban.[4] Whether or not the bill will pass the state House and Senate is still up for debate. 

However, the implications of a bill like this being proposed and the amount of support it has already received are severe. As these stricter laws bring up the legality of abortion bans and the possible reevaluation of Roe v. Wade, they could completely alter the landscape of abortion access. If Roe v. Wade were to be overturned, many abortion restrictions that were in place before Roe v. Wade could go back into effect. Many states also have trigger laws or bans that cannot be currently enforced but will come into effect if circumstances change, such as the overturning of Roe V. Wade.[4] For example, even if Ohio House Bill 480 is not passed, Ohio has a proposed trigger ban entitled Senate Bill 123 that, if passed, would go into effect if Roe v. Wade was overturned.[5] Eleven states currently have trigger laws that would ban abortions in the first and second trimester if Roe v. Wade was to be overturned.[6]

This December, the Supreme Court is going to hear a case concerning a Mississippi abortion law. This case has the potential to overturn Roe v. Wade and completely alter the ability of women to get an abortion in the United States. Abortion activists and anti-abortion activists alike are waiting to see what unfolds during this hearing on December 1, 2021.[7]

Notes:

1. “The College of Liberal Arts the University of Texas at Austin.” UT College of Liberal Arts: TxPEP. Accessed November 7, 2021. https://liberalarts.utexas.edu/txpep/research-briefs/senate-bill-8.php. 

2. Reese Oxner, “Key U.S. Supreme Court Justices Express Concern about Texas Abortion Law's Enforcement,” The Texas Tribune (The Texas Tribune, November 1, 2021), https://www.texastribune.org/2021/11/01/texas-abortion-law-supreme-court/.

3. Oma Seddiq, “Supreme Court Seems Skeptical of Texas' 6-Week Abortion Ban, with Justice Brett Kavanaugh Saying 'There's a Loophole That's Been Exploited',” Business Insider (Business Insider, November 1, 2021), https://www.businessinsider.com/supreme-court-considers-texas-anti-abortion-law-2021-11.

4. “HB 480: Ohio's Proposed Total Abortion Ban,” Ohio Policy Evaluation Network , n.d., https://open.osu.edu/wp-content/uploads/2021/11/HB480-PolicyBrief.pdf.

5. “S.B. No.123.” The ohio senate. Accessed November 7, 2021. https://ohiosenate.gov/legislation/GA134-SB-123. 

6. “Abortion Policy in the Absence of Roe,” Guttmacher Institute, October 6, 2021, https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe.

7. Ariane de Vogue, “Supreme Court to Hear Restrictive Mississippi Abortion Law on December 1,” CNN (Cable News Network, September 21, 2021), https://www.cnn.com/2021/09/20/politics/supreme-court-mississippi-abortion-law/index.html.

8. Oxner, R. (2021, November 2). Here's what U.S. Supreme Court justices had to say about Texas' abortion law. The Texas Tribune. Retrieved December 22, 2021, from https://www.texastribune.org/2021/11/01/supreme-court-texas-abortion-quotes/