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Brief # 108 – Health and Gender Policy

Anti-Abortion Laws to Face the Supreme Court

By Erin McNemar

 

June 5, 2021

Policy Summary

While abortion has long been a controversial topic in American politics, there has been a recent increase in policies attempting to restrict a women’s right to chose. Last month, legislators in Texas worked to pass laws shortening the amount of time women have to make a decision regarding terminating their pregnancy. 

The Texas law comes on the heels of the Supreme Court’s decision to review the Mississippi Abortion law beginning next session. This will be the first time the majority conservative leaning court will hear cases that will directly impact Roe v. Wade.

Analysis

Texas’ Heartbeat Ban

Last month, Texas Governor Greg Abbott signed SB 8, also known as the Heartbeat Ban, into law. The law prohibits abortions from occurring if a fetal heartbeat can be detected. This can occur as early as six weeks in some pregnancies, which is before many people know they are pregnant. The state requires that providers are to check for a fetal heartbeat prior to performing an abortion.

Similar to other anti-abortion laws, the ban does make the exception for medical emergencies but not for cases of rape or incest. The law even goes as far as bringing civil charges against those that perform abortions if the heartbeat is detected and those who “knowingly engage in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise,” after the discovery of a fetal heartbeat. 

Individuals will face a $10,000 fine for every abortion performed or facilitated. 

Mississippi & the Supreme Court

In 2018, then Governor Phil Bryant signed Mississippi’s 15 week abortion ban into law. Like the current Texas law, some exceptions for abortion are made for medical emergencies or “severe fetal abnormality.” However, the law does not make any exception in the cases of rape or incest. A federal judge in Mississippi struck down the law in November of 2018. Then the 5th U.S. Circuit Court of Appeals upheld that ruling in December of 2019.

After being rescheduled dozens of times, the Supreme Court has agreed to review the case during their next session. The Mississippi law directly impacts the ruling of Roe v. Wade legalizing abortion nationwide prior to viability, which can happen around 24 weeks of pregnancy. 

If the conservative  court is to rule in favor of the 15 week abortion ban, it is likely we will see many Republican states implementing laws challenging Roe v. Wade as well. Laws such as the Heartbeat Ban in Texas have the potential to become increasingly common with the Supreme Court not standing in the way. However, it is important to note that a ruling supporting the 15 week abortion ban would not simply make abortion illegal. It would however give states the ability to make their own rules regarding abortion.

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