Let’s not forget that, even though the “Heartbeat Bill” is law in the State of Texas, a woman’s right to decide whether to continue her pregnancy is still the law of the land under the Supreme Court’s viability test in Roe v.

Third, the “Heartbeat Bill” is destined to collapse under the weight of its own unconstitutionality. The bill is extremely inept and does little to hide the fact that it is motivated by the desire to procedurally undermine the necessary judicial review regarding constitutionality for as long as possible. Bear in mind that the insensitive harshness and brutality of the bill is evidenced, especially in the fact that there are no exceptions for pregnancies resulting from rape or incest. It’s a deliberate and blatant defiance of the law of the land, a blatant intent to subvert judicial review in the interest of political ideology, and a calloused disregard for the human dimension of the abortion struggle. The bill is even optically sloppy because it makes no effort to hide the fact that it is motivated by a complete disregard for the question of its constitutionality. The bill demonstrates no consideration to the importance of the doctrine of standing, which requires that the plaintiff bringing the suit must have suffered an actual or imminent injury at the hands of the defendant, which is also redressable through a judicial determination. It is extremely broad, extending to Texas citizens the right to act as a private attorney general.

The bill is disturbingly creative because it constitutes a deliberate attempt to restrict the application of the law to the state context through procedural strategies, which results in an at least temporary escape Supreme Court review to determine the law’s constitutionality. Some empowered citizen, who has no relationship whatsoever to the accused party, will under the authority of the “Heartbeat Bill” initiate litigation against an abortion provider, the result of which will trigger events toward judicial review of the bill’s constitutionality. This is where the actual challenge will occur concerning this bill and where the challenges will likely prove successful. A law can be constitutionally challenged as a matter of post-enforcement litigation, or after the law has been violated.Typically, this is the way legal challenges occur. A law can be constitutionally challenged as a matter of pre-enforcement litigation.Nonetheless, three things are true of the Texas “Heartbeat Bill.”įirst, the “Heartbeat Bill” is disturbingly legally creative. The law is also intentionally constructed in a fashion to evade judicial review by the Supreme Court. The bill is structured to impose a potentially devastating financial liability on abortion providers and guard the law against being constitutionally challenged. This case extends Marbury and expands the ruling so that state officials, state courts, and state legislatures must follow the Constitution as interpreted by the Supreme Court.Īt precisely this point, the “Heartbeat Bill” unconstitutionally burdens the continuing right of a woman to maintain her own bodily integrity and preserve her right to decide her future in the moment of pregnancy. Further, although it is a lesser-known case, it is just as important for present purposes: Martin v.

Madison that where the Constitution as interpreted by the Supreme Court conflicts with laws or actions of other branches of government, then the Court must declare such laws or actions as unconstitutional and invalid. Madison, in which the Supreme Court affirmed its authority to review legislative and executive actions to determine constitutionality. It stems from the landmark case of Marbury v. The bill is especially troubling because it includes a deliberate circumventing of a foundational concept in American Jurisprudence – Judicial Review.Īs a 1L student in law school, Judicial Review is typically the first topic one covers in Constitutional Law. The anti-abortion bill makes it illegal for any female seeking to end her pregnancy beyond a time frame of six weeks into her pregnancy, or once early electrical activity constituting the basis for fetal heartbeat has been detected.

Regardless of what one believes about the legality of abortion, there are a lot of reasons why Texas’ “Heartbeat Bill” should trouble us.

Heartbeat bill texas