Supreme Court Abortion

Abortion rights demonstrators along with Anti-abortion demonstrators rally outside of the U.S. Supreme Court in Washington, Wednesday, March 4, 2020.

Now that most people have their power restored — a lot faster than in the past — Louisiana can transition back to more divisive issues, like abortion.

A half-dozen states have passed laws banning abortions when heartbeats are detected in the fetus. Enforcement, however, differs depending on the state. Alabama, for instance, made it a crime for doctors to perform abortions. The courts suspended Alabama’s law for the time being.

On Sept. 1, when the U.S. Supreme Court refused to block it, the Texas fetal heartbeat law went into effect leading to the closure of most abortion clinics and sending women on long trips across state lines to terminate pregnancies.

Rather than having state government enforce the law, which would have quickly led to court challenges, Texas authorized private citizens to sue anyone they personally deem to have assisted in an abortion from the doctor to the person who drove her to the clinic. Winners can collect up to $10,000 plus their attorney fees.

Apparently, “mutual social vigilance” has become a new conservative value.

Columnist George Will, the dean of practical conservatives, points out that Texas’ feint toward totalitarianism undoubtedly will be sent off to historical footnotes like the Salem Witch trials when courts focus on the private enforcement of any laws.

Michael Sean Winters in his National Catholic Reporter column agrees, writing the new Texas law was “introducing a kind of vigilante justice we had all thought consigned to old Western movies,” but one that could backlash badly on the pro-life movement.

Texas also takes the eye off Mississippi, which has the case that could make abortions illegal.

“The Texas law is different because of the civil enforcement mechanism,” said Benjamin Clapper, executive director of Louisiana Right to Life, based in New Orleans. “The most important thing Louisiana should be watching is the Supreme Court decision in (the Mississippi case) Dobbs.”

Louisiana has laws similar to Mississippi, one forbidding abortions after 15 weeks of pregnancy and another that bans the procedure after a fetal heartbeat is detected, which often happens at six weeks, before the woman knows she is with child. Louisiana won’t enforce its laws until the courts decide the constitutionality of the Mississippi laws.

When their term begins in two weeks on Oct. 4, the U.S. Supreme Court is scheduled to hear Thomas E. Dobbs, in his official capacity as State Health Officer of the Mississippi Department of Health, et al., versus Jackson Women’s Health Organization, on behalf of itself and its patients, et al. The question before the high court is “whether all pre-viability prohibitions on elective abortion are unconstitutional.”

Roe v. Wade, the 1973 decision and its judicial progeny, eventually allowed abortions at different degrees of availability based on the chances of the baby's survival after birth. Abortion was easier to obtain in the first trimester, at 13 weeks, a little more difficult in the second trimester. After the third trimester, 26 weeks, the procedure was usually limited to protecting the mother’s life and serious medical conditions.

At 15 weeks a fetus’ heart is beating, gender is identifiable, and they can move their fingers. But a fetus can’t survive on its own outside the mother’s womb until about 24 weeks into a usual 39-week pregnancy.

Alarm bells rang for Nancy Northup, president of the Center for Reproductive Rights when the now 6-3 conservative-leaning high court, after a dozen or so requests, finally accepted Dobbs. She said in a statement: “The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade.”

In Louisiana, Clapper said pro-life forces are looking to ensure enforcement of the state’s laws regardless of whether the Supreme Court supports the Mississippi and hence the Louisiana law, or just modifies the Roe v. Wade standards. The group is studying the Texas enforcement provision, talking to legislators, and deciding what to do when lawmakers reconvene March 14 for the next regular session.

Clapper said he hasn’t studied civilian enforcement enough to have formed an opinion, but he understands why.

“There’s a lot of frustration that for nearly 50 years this is the law of America and so citizens are frustrated with the courts and they’re just trying to ask themselves ‘What can we do that’s peaceful?’”


Email Mark Ballard at mballard@theadvocate.com.