A law prohibiting all abortions after the sixth week of pregnancy and encouraging U.S. citizens to prosecute violators came into effect Wednesday, September 1, in Texas, in the absence of a U.S. Supreme Court ruling on an urgent appeal.

US President Joe Biden has denounced a violation of the Constitution.

With the entry into force of the "Texas Senate Bill 8" (SB 8), also called the "Texas heartbeat act" (the law of the beating of the heart), the vast majority of abortions (85%, according to the opponents of the law) is now illegal, in this conservative southern state even in cases of incest or rape.

Any abortion is now prohibited from the moment the fetal heartbeat is noticeable, a stage where many women are still unaware that they are pregnant.

It is only allowed in the event of an extreme medical emergency.

If implemented, this law would drastically reduce access to abortion in Texas, where, according to family planning organizations, more than 85% of women abort after six weeks of pregnancy.

An "unconstitutional" law

In the United States, abortion is legal as long as the fetus is not viable, between 22 and 24 weeks gestation.

It is a fundamental right, protected by the American constitution by virtue of two case law.

The main one is Roe v.

Wade of 1973 who legalized abortion nationwide in the United States, making it a right to privacy, protected by the 14th Amendment to the Constitution. 

The second case law that is the basis of the right to abortion is the "Casey" case of 1992 

("

Planned Parenthood v. Casey"

), 

which authorizes abortion as long as the fetus is not viable, ie up to 22 to 24 hours. weeks of pregnancy.

The "Texas Senate Bill 8" is therefore "massively unconstitutional", according to Maître Christophe Fabre, lawyer at the Paris bar and teacher at Science-Po, questioned by France 24. "This law is contrary to American federal law in matters of The time limit is below the 22 to 24 weeks set by the Roe and Case case law, "explains this specialist in the American constitution, adding that in the United States, federal law is above those of the States.

This is not the first time that a US state has defied federal law to pass an anti-abortion law.

Before Texas, at least twelve states, including Alabama and Mississippi, the latest to date, passed laws to ban abortions as soon as the fetal heartbeat is noticeable.

So far, although some decisions are still pending, most have been overturned in federal courts. 

"Any citizen can file a complaint"

So why is "Texas Senate Bill 8

" any

 different?

With this law, Texas found a way to fall through the cracks by wording its law differently.

This time, it is not for the state authorities to enforce the said law, but for the citizens to file a civil complaint against structures, organizations or anyone who "would help and encourage" a woman to have an abortion.

In other words, any American, from any state in the country, can now sue doctors or people who allegedly assisted a woman with an abortion after six weeks of pregnancy in Texas - let them know the patient. or not, whether the aid provided is in medical or other form.

As the New York Times claims, the law could create ubiquitous situations because even an Uber driver who brought a woman to a clinic to have an abortion could be targeted.  

The State of Texas is thus shirking its constitutional responsibility.

"Texan legislators are smart" reacts Me Christophe Fabre, "they say they are not responsible, yet it is the Texas legislature which passed this law, which violates federal law," he explains.

"There is also a procedural problem (relating to the legal procedure, Editor's note)", adds Me Fabre, "this is what we call a 'popularist' action, in which any citizen can file a complaint This is not only contrary to Texas laws, but also to Article 3 of the American constitution which imposes 'procedural requirements', that is to say that it is necessary to prove an interest to act, to prove that one is a victim, before being able to prosecute someone before a judge, ”adds Me Fabre. 

“More than 370 Texan lawyers have also proved, in an open letter, that Texas law is legally lame,” notes the lawyer.

Ten thousand dollars reward

"It is almost a law of intimidation", continues the lawyer specializing in the American constitution.

"Texans are trying to put in place additional hardships to deter women, doctors and caregivers from performing abortions, including making them pay attorney fees in court cases."

Because the text provides that citizens who initiate proceedings receive at least 10,000 dollars in "compensation" in the event of conviction.

Amount that will be taken from the pocket of the accused person.

The goal is also to make these prosecutions as costly and burdensome as possible for those who find themselves in the dock.

The latter will have to pay their legal fees even if they win, according to the Washington Post, and could even face several lawsuits for the same abortion.

Silence of the Supreme Court

The crafty Texas law was drafted to make it difficult to challenge in federal courts.

Legal action to block a law for unconstitutionality usually designates state officials as responsible.

But before the "Texas Senate Bill 8", which puts this responsibility in the hands of the citizens, the federal courts become powerless.

Several organizations defending the right of women to abort therefore seized, on August 30, urgently, the Supreme Court to ask to block the entry into force of the text or to oblige the federal courts to do so.

The country's highest court, which was due to rule by September 1, did not accept this urgent request to block the law.

"A decision may fall soon, or never fall" explains Christophe Fabre, specifying that in the absence of a sentence from the Supreme Court, the Texas authorities "want this law to go before the Texan courts which have more chances of validating it, because the judges, elected by the local population, are much more conservative. "

Conservative anti-abortion offensive

The bill signed last May by Texas Governor Greg Abbott is part of a larger offensive led by conservative American states against the right to abortion.

Mississippi is currently defending a law passed in 2018 that bans most abortions after the 15th week of pregnancy.

"Texas and Mississippi vote this kind of law because they hope that the Supreme Court will change its case law on the right to abortion", affirms Me Christophe Fabre.

"It is a political will of conservative states to bring these anti-abortion laws up to the Supreme Court so that they question the Roe and Casey case law, the foundations of the right to abortion." 

And according to the lawyer, the strong conservative majority in the Supreme Court suggests that it could be the case.

"The chances that the Supreme Court will invalidate existing laws on abortion have never been as strong as they are today," he says. 

Since the appointment by former Republican President Donald Trump of three judges, the Conservatives have a majority (six out of nine) in the country's highest court.

If John Roberts, the president of the Supreme Court, has so far insisted on following the rule of precedent, that is to say the one which aims to enforce the decisions of justice already rendered, many are the judges of the Court who openly take a stand against laws protecting abortion.

"This is the case of Samuel Alito, Clarence Thomas and Brett Kavanaugh", details Christophe Fabre.

"As for Amy Coney Barrett, she has already said that Casey and Roe are not untouchable case law, which means she won't hesitate to question them."

>> United States: 46 years after "Roe vs Wade", the right to abortion threatened

?

"Existential threat to abortion rights"

The High Court agreed to review the restrictive Mississippi law in the fall with a likely verdict in May or June.

A decision which "speaks volumes" for Mary Ziegler, professor of law at Florida State University, specialist in abortion law.

Asked by France 24, she said she feared an "existential threat to abortion rights in the United States."

"Many expect the court to uphold Mississippi law. And for that to happen, judges will have to overturn all or part of the Roe v. Wade case law."

If this law which protects the right to abortion were to lapse, explains Mary Ziegler, "half of the states of the country would criminalize abortion".

The American president, for his part, denounced an attack on the Constitution after the entry into force of "Texas Senate Bill 8".

"This sweeping law is a flagrant violation of constitutional law recognized in Roe v. Wade," Joe Biden said in a statement, vowing to defend the right of American women to have an abortion.

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