A Critical Analysis of the Texas Abortion Ban: From Judicial Precedents to International Obligations
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A Critical Analysis of the Texas Abortion Ban: From Judicial Precedents to International Obligations

One of the most radical abortion bans in United States history, Senate Bill-8, was recently enforced in the state of Texas. It is popularly referred to as the “Texas heartbeat law” as it bans the medical termination of pregnancy after the detection of a heartbeat, which is usually around the 6th week of pregnancy, sometimes even before the woman realizes that she is pregnant. Moreover, it bars the state officials from enforcing the provisions of the legislation, in an attempt to bypass judicial review. Instead, the law allows private persons to sue anyone who they suspect of “aiding, abetting, or performing” an abortion. The broad wording of this provision exposes seemingly everyone involved in the process to potential legal action, right from the cab driver ferrying the woman, to the medical practitioner performing the procedure. By awarding the complainant a grand sum of $10,000 in case of a win, the law incentivizes the private prosecution of abortion providers and “abettors,” thus laying the foundation for a vigilante culture.

In this article, the authors attempt to assess the legal validity of the law and its private enforcement provision, as against the established judicial precedents. Moreover, they highlight the failure of the law to abide by the United States’ international obligations.

The Question of Legal Validity

The law directly violates the landmark 1973 Roe v. Wade Supreme Court judgment, wherein a 7-2 majority held that the right to privacy, even though not explicitly mentioned, is implicit in the Due Process Clause of the 14th  amendment, which is broad enough to encompass a woman’s choice as to whether or not to have abortion. While the state has certain legitimate interests in the protection of women against hazardous medical procedures and conservation of  prenatal life, the right of a pregnant woman to terminate her pregnancy is fundamental. Further, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court strictly maintained that the state cannot place an undue burden on the pregnant woman’s choice to have an abortion until the point of “viability,” which is roughly at the 24th week of pregnancy. The standard of “fetus viability” has been constitutionally established, and the law in question directly contravenes this standard. Moreover, the legislation also violates Section 1 of the 14th Amendment, which guarantees the right to personal liberty except when restricted by due process of law. Contravention of a federal provision by a state legislation also violates the supremacy clause in the US Constitution.

State enforceability of a public law is an essential criteria for a judicial review by a federal court, but the authorization of private individuals to file civil suit actions circumvents the enforceability requirement. Consequently, the legislation is shielded by a procedural loophole in spite of its unconstitutional nature. The Supreme Court, with a conservative majority, in an emergency appeal against the law refused to impose a provisional injunction on account of the same.

However, Justice Breyer, in his dissenting judgment, states that since the state cannot regulate abortion during the first 24 weeks, the state also cannot delegate this regulatory authority to any private person during that period. The delegation of prosecuting authority to any private individual opens the door to an unrestricted number of lawsuits, “posing a blatant threat of imminent legal harm.” The principle of  “private non-delegation” was laid down in the Cartel v. Cartel Coal Company case, wherein delegation of crucial governmental function to a private entity with insufficient safeguards was deemed violative of the due process clauses in the Fifth and 14th Amendments. Furthermore, a private entity is precluded from wielding any legislative or executive function of the federal government in accordance with the interpretation of the vesting clauses of the US Constitution in The Department of Transportation v. Association of American Railroads. The private prosecution of public laws with unfettered discretion questions the legitimacy and accountability of the state and law enforcement.

Analyzing the Texas Abortion Ban through an International Law Lens

The Texas heartbeat legislation fails to abide by the United States’ international obligations laid down in conventions such as the International Covenant on Civil and Political Rights (ICCPR), International Convention of Economic, Social and Cultural Rights (ICESCR), and Universal Declaration of Human Rights (UDHR), among others.

In two cases before the Human Rights Committee (HRC), it was held that near complete bans on abortion which compelled women to travel to other jurisdictions merely for the purpose of getting access to safe medical facilities were tantamount to subjecting those women to conditions of intense physical and mental suffering, which would constitute cruel, inhumane, and degrading treatment. Consequently, the Texas abortion ban, by forcing women to travel all the way to other states just for getting an abortion without the fear of being penalized for it, impinges upon Article 7 of the Covenant. Article 26 of the ICCPR, which the United States has ratified, imposes an obligation upon the states to protect individuals from discrimination on the grounds of inter alia, sex. Thus, by arbitrarily placing hurdles in access to women’s healthcare facilities, the Texas law stands in contravention of this provision.

General Comment 36 (GC-36) on Article 6 of the ICCPR stipulates that, “States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable.” In its General Comment 33, the HRC held that even though it is not a judicial body, its comments “exhibit some important characteristics of a judicial decision. They are arrived at in a judicial spirit, including the impartiality and independence of Committee members.” Therefore, the state parties to the ICCPR have a “good faith” obligation to adhere to the findings of the Committee, pursuant to Article 26 of the Vienna Convention on the Law of Treaties (VCLT). The Texas law does not make any exception for victims of rape or incest; while it does permit for an abortion in cases where “the pregnancy could endanger the mother’s life or lead to substantial and irreversible impairment of a major bodily function,” pro-choice activists fear that the medical practitioners will be extremely conservative in interpreting this provision, due to the fear of “crossing the line.” Therefore, the Texas law fails to abide by the Committee’s findings in GC-36 on all counts.

Moreover, Article 12 of the ICESCR imposes an obligation upon the state parties to protect the individuals’ right to the “enjoyment of the highest attainable standard of physical and mental health.” This right has also been enshrined as a fundamental human right under Article 25 of the UDHR. Therefore, the United States of America, being a state party to the ICCPR and a signatory to the UDHR, has a duty to ensure that the legislations enacted within its territory do not contravene its treaty-imposed obligations.

Conclusion

By attempting to regulate the private sphere in order to ensure that it mirrors the pro-life societal norms, the Texas abortion law blurs the contours of the Habermasian public-private divide. Not only does it infringe upon the reproductive autonomy and privacy of choice of pregnant women, but also brazenly defies the very Constitution of the United States and its international obligations.

 

Shreyam Sharma is a law student at the National Academy of Legal Studies and Research (NALSAR), Hyderabad. He is deeply passionate about international law, constitutional law, and journalism.

 

Sukrut Khandekar is a law student at the National Academy of Legal Studies and Research (NALSAR), Hyderabad. His areas of interest include gender rights, constitutional law, and human rights.

 

Suggested citation: Shreyam Sharma and Sukrut Khandekar, A Critical Analysis of the Texas Abortion Ban: From Judicial Precedents to International Obligations, JURIST – Student Commentary, October 4, 2021, https://www.jurist.org/commentary/2021/10/sharma-khandekar-texas-abortion-ban/.


This article was prepared for publication by Sambhav Sharma, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org

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