November 5, 2021

Supreme Court Hears Oral Arguments in Texas Heartbeat Act Case

On Monday morning, the Supreme Court began hearing oral arguments in two cases challenging Texas's Heartbeat Act. The Heartbeat Act allows individuals to file lawsuits against those who participate in the abortion of unborn babies with detectable heartbeats (children of 6 weeks gestation or older). Those cases are Whole Woman’s Health v. Jackson and United States v. Texas.

Neither of these cases challenges the constitutionality of a law prohibiting the abortion of children whose heartbeats are detectable. Whole Woman’s Health v. Jackson is a challenge to the law's unique enforcement method. In United States v. Texas, the Supreme Court is only considering whether the Biden administration even has the legal standing the sue Texas in federal court.

Whole Women's Health and the Biden administration argued that the Texas law violates the "right" to abortion established under Roe v. Wade, while Texas Solicitor General Judd E. Stone argued that neither party had the legal standing to sue the state. He argued that Texas judges, court clerks, and other officials are not responsible for enforcing the law. He argued that because the Heartbeat Act is enforced by the individuals who file lawsuits, the state of Texas is not the appropriate defendant for these challenges.

The court is more likely to address the "right" to abortion more directly when Dobbs v. Jackson Women's Health Organization is heard next month. In that case, abortion businesses are challenging a Mississippi law banning abortion at 15 weeks gestation. Mississippi's Attorney General is framing the case as a direct challenge to the Supreme Court Precedent established in cases such as Roe v. Wade.

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