Judiciary has limited power to end debate on abortion, says professor – 13/09/2021 – World

The new Texan law that prevents abortion after six weeks of pregnancy is a sign that the days of the right to voluntary termination of pregnancy may have expired at the federal level in the US.

For Mary Ziegler, a law professor at Florida State University and an expert on the history of reproductive law in the country, “anyone who is paying attention” sees that the case Roe v. Wade, a legal framework that established the right to legal abortion in the US in 1973, is under threat.

In October, the Supreme Court is expected to begin analyzing a process that could reverse the understanding.

“What can be a lesson is that court decisions are less solid than they seem,” she told Folha. “The judiciary has limited power to end the abortion debate.”


What does the “heartbeat law” mean for the right to legal abortion in Texas and the US in general? In Texas, it basically means that, at least for the moment, there is no legal abortion. The law allows abortion before the heart beats, which happens no later than two weeks after menstruation is delayed. For all intents and purposes, it’s impossible to have an abortion in the state, because most clinics have said they won’t offer the procedure for fear of the processes that the law authorizes. Obviously it’s not a law that nullifies Roe vs. Wade, but signals that the Supreme Court does not see abortion as a full right. And that understanding can be reversed this year or next year.

Out there

The Supreme Court has not decided whether or not the law is unconstitutional, it has not reviewed the case. Why? The Supreme Court said that, at this point in the action, it could not identify anyone who could be prosecuted for challenging the constitutionality of the law in court. That is, it did not say whether it is constitutional or not, but that legal abortion services had not yet been able to bring the case to federal court.

Should other states be inspired by Texas? Yes. There are seven or eight states, including Florida, that have already said they will adopt a similar law.

One of the main mechanisms of the law is that the government is not in charge of enforcing it, but the citizens. How does it work? Is there a precedent? There is no precedent. In most cases, when there are restrictions on abortion, such as you see in other parts of the world, there is essentially a criminal prohibition. In the case of this law, the State is not authorized to impose the law. In fact, he is explicitly prohibited from doing this. So anyone who doesn’t even have to be from Texas can sue legal abortion services and ask for up to $10,000 if anyone has an abortion after six weeks. Anyone who helps to perform an abortion can also be prosecuted.

For those who made the law, this is positive for two reasons. First, because it is difficult for the state to know about all abortions that take place, and this rule provides financial incentives for people to report their neighbors. Second, because it makes it virtually impossible to challenge the law in the Judiciary, because in the US there are difficulties in prosecuting a government, and you cannot file a constitutional challenge against an ordinary citizen. You could sue the government agent by enforcing the law, but in the case of Texas the law specifies that no agent can do that, so there’s no one to sue. And then, even if the law is unconstitutional, there is nothing to be done.

On what basis can a person sue services that perform abortions? It doesn’t need to be based on anything, just the new law. You don’t have to know the person. It doesn’t have to have been harmed by the procedure. You just have to know she had the abortion.

In other words, if you’re walking down the street and you hear a conversation about someone having an abortion, can you ask for thousands of dollars in a lawsuit? Basically yes. The point is that Texas wants to ban abortion unchallenged. This is not how the court system normally works, in general you have to have been affected to be able to sue something or someone. And Texas is trying to rewrite that rule.


Some pro-abortion activists say it’s not a question of “if” but “when” the understanding of Roe v. Wade will be revoked. What is your perception? It’s never possible to say for sure, because we’ve been wrong about this before. But anyone who’s been paying attention sees that it’s more likely to be a “when” not an “if”. And that will immediately mean that roughly half of the states will ban most or all legal abortions. And then the anti-abortion movement is going to try to end all abortions, because that’s their goal. If you believe abortion is murder, you don’t think it’s okay to happen in some states. We’ve already seen arguments along these lines in the Supreme Court, and this will be accelerated if Roe vs. Wade is revoked.

Some surveys point out that 2021 was the worst year for abortion rights in the US since 1973. According to the Guttmacher Institute, 561 restrictions on the procedure went into effect. Why this climb? It has to do with the composition of the Supreme Court and the functioning of the Republican Party. In the first case, the court has three new members who were placed there by Donald Trump, and many states think that will be enough to end Roe Vs. Wade. So they’re passing laws that they want to see into effect. And the Republican Party has increasingly relied on a strategy to increase voter turnout. So instead of appealing to the average voter, there is an attempt to energize the ideological base. And that means more willingness to pass laws that are controversial but that appeal to these voters.


Which states have the most restrictive laws? And the ones with less? The most liberal places tend to be progressive states like California, New York and Massachusetts. And the most restrictive are conservatives like Alabama and Mississippi. States like Texas and Florida [terem legislação mais restritiva] it’s a game changer, because they have larger and more politically diverse populations and can take other pendulum states with them [que ora votam em democratas, ora em republicanos].

Argentina legalized abortion in 2020, Mexico now decriminalized it in September. Why does the US seem to be going against the grain? What can be a lesson from this for countries like Mexico is that changes through court decisions may be less solid than they seem. And the flip side of that is just that if the US is going in the opposite direction now, it won’t be permanent either.

Courts have limited power to end the abortion debate. They make a difference, but it’s not like after they make up their minds the rest of the people say “oh, ok, it’s over” and go home.

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