The Supreme Court of the United States authorized, Friday, December 10, the federal courts to intervene against the Texas law on abortion, very restrictive, without going so far as to suspend it. The half-hearted decision removes the procedural hurdles that have so far prevented federal court judges from blocking Texas law, which violates high court jurisprudence.
Entered into force on 1er September, the text prohibits the voluntary termination of pregnancy (abortion) from the moment when the heartbeat of the embryo can be detected – approximately six weeks of pregnancy. However, the Supreme Court has guaranteed since 1973, with the emblematic Roe v. Wade, the right of women to have an abortion, and then clarified that it applies as long as the fetus is not viable – that is, around 22 weeks of pregnancy.
In fact, Texas law is almost a general ban on abortion: between 85% and 90% of abortions relate to a pregnancy that has reached beyond this period. The law is intended to be a powerful deterrent. It does not provide for any exceptions in cases of rape or incest.
Above all, Texas has devised an exceptional device which has so far complicated the intervention of the federal justice. Its law entrusts the care of enforcing this prohibition “Exclusively” to citizens. The latter are called upon to denounce in court any person having contributed to an abortion, directly (doctor, nurse) or indirectly (the taxi or bus driver who would take the patient to the clinic for example). This denunciation can earn up to 10,000 dollars (8,800 euros) for each alleged ” partner in crime “.
Another astonishing aspect of the legislation: it is not for the plaintiff to provide proof of the alleged offense, but for the defendant to defend himself against it. If the latter is found guilty, he will also have to reimburse the plaintiff’s legal costs.
Inaction of the Supreme Court criticized on the left
“This sweeping law is a flagrant violation of constitutional law recognized in Roe v. Wade “, wrote the President of the United States, Joe Biden, in a press release 1er September. “My government is very attached” the right to abortion, “We will protect and defend it”, he added. Mr. Biden’s administration appealed to the Supreme Court on October 18 in an attempt to block the legislation.
The highest American court, where conservative judges have a majority, had already been seized for the first time and had taken refuge behind these “New questions of procedure” (the fact of leaving the application of the law to the load of the citizens) to refuse, the 1er September, to block the entry into force of the text.
The Supreme Court’s inaction, seen as a sign of the influence of the three magistrates appointed by Donald Trump, had been strongly criticized on the left. The legal battle then intensified, forcing her to take full charge of the case.
At a hearing, the 1er November, a majority of its judges had displayed their skepticism about the mechanism of the law. Ultimately, “Eight members of the Court agree in saying” that the principle which protects the sovereignty of the fifty states “Does not prevent prosecution in federal courts”, according to their decision, which only Conservative Judge Clarence Thomas did not join.
In a separate text, court president John Roberts and the three progressive magistrates said they want the courts to block Texas law quickly, “Taking into account its sinister and persistent effects”.
Before Texas, twelve states passed laws to ban abortions as soon as a fetal heartbeat is noticeable. These laws had all been invalidated in court, since they violate the jurisprudence of the Supreme Court.