Hemangi Gurjar, [2nd year BA LLB student at NMIMS Kirit P Mehta School of Law]
Recently, the Supreme Court of the United States of America created turmoil amongst everyone who stands for women’s rights when it gave a green signal to a new Texas law, called the Senate Bill 8, which makes abortion functionally illegal in the entire state.
The new law bans abortions as early as about six weeks from the patient’s last menstrual period, basically, once cardiac activity is detectable. The issue is that before the 6 weeks mark, most women do not even find out that they are pregnant. It is the strictest abortion ban to be applied in the country. One might wonder what made the same court that rejected several other abortion laws, pass this one and the answer is a unique legal approach, a twist or a loophole for the lack of a better word that the Texan government caught hold of. The law does not directly punish patients who get an abortion as they cannot be sued, but people who help the patients can be sued by anyone and everyone. A physician who performs an abortion using his discretion in regard to a medical emergency can also be sued by anyone who disagrees otherwise.
According to legal experts, the bill greatly widens the concept of a civil lawsuit and is intended to prevent providers from claiming constitutional right to an abortion as a legal defense mentioned in Roe v. Wade. In this case, it had been ruled by the Supreme Court that it is the constitutional right of a woman to get an abortion because it involves her ‘Right to Privacy’ which has been guaranteed by the 14th Amendment of the US Constitution. This was heralded as a watershed step towards the protection of women’s rights. The new law, which prohibits abortions almost entirely, includes several provisions that experts say favour plaintiffs, such as protecting serial plaintiffs who may file dozens or hundreds of cases, incentivizing civilians to sue with a $10,000 cash reward if successful, and removing defendants' ability to recoup legal fees. The law basically makes sure that those who snitch against the people who get abortions and others who aid them, to be paid a handsome amount.
The most striking points of the law include that nearly all abortions are banned, the exceptions made for ‘medical emergencies’ are very vague, the law may also reach beyond the borders of Texas, the defenses available are hardly any, those who win the suit against patients or their aids will get $10000, the officials of Texas have technically insulated themselves, the lawyers are discouraged from challenging the law and even the judges are being told on what to do. All these factors make the law extremely problematic and a a lot of vague terminology is used which makes the law open to a plethora of interpretation.
The law not only triggered those who fight for human rights all over the world but also induced people to get on the streets to fight for the rights of people not just in Texas but everywhere. The Supreme Court announced that it will not be blocking the law and that did not help the situation. Allowing the Texas abortion ban to go into force is an assault on women's rights that will have catastrophic consequences for Texas women. It will likely inspire other states to enact similar limitations, with the ultimate objective of overturning Roe v. Wade. This would virtually outlaw abortion in the United States. Because of the present politics of the United States Supreme Court, the chances of this happening have grown and the threat on human right seems to have increased.
Another deeply concerning aspect of the law is that it does not exempt victims of rape and incest which means that a woman will have to carry a baby which is a result of heinous crimes and will be punished if she tries to abort the foetus. A father can rape his daughter and then sue her if she tries to get an abortion and receive money for doing that. This might not sit well when we read it but that is the exact situation in Texas right now and there remains no guarantee that other states will not follow suit in applying similar restrictions in their territories.
The human rights activists have been fighting for the rights of women and raising their voices to create awareness. But they can only do so much. The ultimate decision of whether or not woman get to decide what is good for them and their bodies depends on the judges in the court.