The head of the state’s premier anti-abortion organization said Thursday she is looking to use the newly enacted Texas ban on the terminating a pregnancy after fetal heartbeat has been detected as a template for legislation here.
Cathi Herrod, president of the Center for Arizona Policy, said the late-night decision Wednesday by the U.S. Supreme Court to allow the Texas law to take effect appears to provide a “road map” for enacting abortion restrictions in this state that, until now, have been struck down by federal courts.
But the key to the Supreme Court action is the difference between SB 8 and all other abortion restrictions.
Laws from other states make it a crime to terminate a pregnancy in certain situations or after a certain date, with the state in charge of enforcing the law and prosecuting offenders.
For example, a 2012 Arizona law to make it a crime to perform an abortion after 20 weeks was struck down by a federal court, a decision upheld by the Supreme Court. Similar laws from other states have met similar fates at the high court.
In Texas, however, the law empowers individual citizens — and not necessarily from Texas — to file civil suits against not only abortion providers but anyone who “aids or abets” aborting a fetus after a heartbeat has been detected.
That usually occurs about six weeks into pregnancy, which may actually be before a woman knows she is carrying a child. It also could effectively become a nearly total ban on the procedure based on estimates that at least 85% of abortions are performed after that point.
It is that unusual structure of civil enforcement of the statute that resulted in the 5-4 decision of the Supreme Court to allow SB 8 to take effect while other legal challenges make their way through the courts. And that is the first time the justices have given their blessing to such a sweeping restriction since the historic Roe v. Wade decision in 1973 that says states may not restrict the ability of a woman to terminate a pregnancy before a fetus is viable.
Herrod is taking a closer look at what she calls a “novel approach” to restricting abortion.
“The Texas heartbeat law is a road map to what other states can do,” she told Capitol Media Services. “The Texas heartbeat law is worthy of serious consideration by the Arizona Legislature.”
She acknowledged that, strictly speaking, the Supreme Court action was not a final ruling on the constitutionality of the measure. But the fact remains that the justices have allowed the law to take effect.
The high court decision is based on the unusual approach taken by Texas lawmakers.
SB 8 spells out that its ban on post-heartbeat abortions is enforced only by individuals who can sue doctors, friends, associates or others that help a women terminate a pregnancy. It even provides for them to recover their legal fees and offers a $10,000 minimum reward for every successful lawsuit.
And it is that approach to the issue that five of the justices of the Supreme Court said guided their decision not to block its enforcement.
In a brief unsigned opinion, the majority said the abortion providers who challenged the law did not properly address the “complex and novel antecedent procedural questions” in the case of having a law enforced not through criminal trials brought by prosecutors but through civil lawsuits that anyone can file. So the justices left the statute intact pending any further challenges to the statute.
That drew dissents from the other four, including an angry reaction from Justice Sonia Sotomayor who called the order “stunning,” particularly given the still-in-effect precedent of Roe v. Wade.
“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of the justices have opted to bury their heads in the sand,” she wrote. Sotomayor said the failure of the court to act “rewards tactics and inflicts significant harm on the applicants and on women seeking abortions in Texas.”
Even Chief Justice John Roberts sided with the three more liberal justices, saying he would have enjoined enforcement of the law to let lower courts decide “whether a state can avoid responsibility for its laws” prohibiting abortions after roughly six weeks because it “essentially delegated the enforcement of that prohibition to the populace at large.”
Herrod isn’t the only one paying attention to the ruling and what it could mean in Arizona.
So is Sen. Nancy Barto, R-Phoenix.
She is the sponsor of a new Arizona law which makes it a crime, enforceable by the state, to abort a fetus due to “genetic abnormalities.” That law is set to take effect at the end of this month, though there is a lawsuit challenging its constitutionality.
Barto said she wants to see how this particular approach to banning abortions at six weeks is considered by the courts on its merits. But the senator indicated she is hopeful.
“So far, it’s saving lives,” Barto said of the Texas statute. “And that should encourage everyone who care about protecting life in the womb.”
The ruling, however, concerns Planned Parenthood of Arizona — and not just over the potential to use it as a template for new laws. Organization spokeswoman Murphy Bannerman pointed out that the law Barto already ushered through actually has some of the same elements of civil enforcement as the Texas statute.
For example, she noted, the law does more than make it a crime to perform an abortion knowing that the reason was the genetic abnormality. It also allows the husband of the woman who has such a procedure to file a civil suit on behalf of the unborn child.
And if the women is younger than 18, her parents can sue.
What all that means, Bannerman said, is that those who want to preclude this kind of law in Arizona will have to be vigilant.
“We are asking for people to email their legislators and tell them that you don’t support abortion bans, that you don’t support something similar to SB 8 being enacted here in our state,” she said.
Herrod, however, said while the approach Texas is taking is unique, it is not without precedent, even in places like Arizona. She said there are other circumstances where a private citizen can enforce laws.
“If you walk by a car that’s locked and you see a child that’s inside that car, and it’s in our heat and the child is clearly not going to survive, you’re going to bust open the window and save that child,” Herrod said. “That’s analogous to what Texas is trying to do, that the private citizen is able to protect that child from the abortionist’s hand.”
There was no immediate response to the Supreme Court ruling from Gov. Doug Ducey who has signed every abortion restriction that has reached his desk.
What’s next for SB 8 — and any other similar law enacted here or elsewhere — will be further litigation.
The majority stressed it was not issuing a ruling on whether the Texas law is constitutional. And the justices said they were not limiting “procedurally proper challenges” to it.
“We know this isn’t the end of the road on litigation,” said Herrod. “The pro-abortionists will come up with some other approach to watch this law.”