By Rachel Bina
Rachel Bina is a freshman in the Huntsman Program at the University of Pennsylvania studying Business and International Studies with a focus on Russia.
One of the United State’s most contentious issues is that of abortion. The most recent development in this decades-long debate is the legal battle over a new controversial Texas state law that limits access to abortions in Texas. The new law, titled Senate Bill 8 (S. B. 8) or the Texas Heartbeat Act, allows private citizens to sue anyone who “aids and abets” an abortion after the detection of a fetal heartbeat, which typically occurs around six weeks of pregnancy . There are no provisions for instances of incenst or rape, however, the law permits abortions for health reasons such as danger to the mother’s life . Among those classified as individuals who “aid and abet” abortions are doctors, staff, or drivers who offer transport to patients to abortion clinics. Plaintiffs, provided they win the case, will receive $10,000 and their legal fees will be covered by the defendant . Lawmakers wrote the law in such a way as to exclude state officials from enforcing the law and, instead, deputize private citizens to do so to avoid federal judicial review .
Besides the obvious controversy surrounding this law, as it is one of the nation's strictest abortion laws today, the structure sets a new and arguably dangerous precedent. Allowing private citizens to sue abortion providers and other individuals involved after around the six week mark goes directly against Roe v. Wade, which protects the right to an abortion via the right to privacy in the first trimester of pregnancy . Additionally, deputizing private citizens to work around constitutional rights sets grave precedents as it insulates the law from federal judicial review. This prevents the law from easily being overturned by federal courts even if it is unconstitutional. Many of the Supreme Court justices have expressed concerns regarding the law, with Chief Justice Roberts and the three liberal justices writing that the law could damage the protection of constitutional rights and Justice Kavanaugh saying that it “will easily become the model for suppression of other constitutional rights, with Second Amendment rights being the most likely targets.” 
These concerns are not unfounded. Take, for example, a new proposal for a California law that would allow private citizens to sue manufacturers, sellers, and distributors of assault weapons or ghost gun kits for up to $10,000 per violation . The California legislation was proposed as a response to both a federal judge striking down California’s 32-year ban on specific types of weapons as well as the Texas Heartbeat Act. Governor Newsom (D-CA) even said “If states can now shield their laws from review by the federal courts … then California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way,” indicating that he is taking S.B. 8 as a model for gun legislation .
Assuming that the Texas law stands, it could act as a model to restrict constitutional freedoms on any issue. The limitation of constitution freedoms affects individuals of all political leanings. Whether it is the right to an abortion, the right to bear arms, rights to privacy, or rights to free speech down the line, a law that deputizes private citiziens rather than relying on traditional state enforcement mechanisms could be used to restrict any number of constitutional rights. The Texas Heartbeat Act begs the question of whether the legality of this method will stand because if the justice system invalidates the law, it cannot function as a model for future legislation. Two ongoing cases will challenge S.B. 8 in the Supreme Court, Whole Woman’s Health v. Jackson and United States v. Texas, and other suits raise the question of the law’s constitutionality in lower courts .
Abortion remains an extremely complicated topic in the United States and so are the laws and legal precedents surrounding it. However, the new controversial Texas Heartbeat Act, S.B. 8, represents more than just abortion. It questions the power of federal judicial review, the functionality of our system of checks and balances in the United States, and of the sanctity of the protections offered to Americans by the United States Constitution.
The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.