Skip to main content

Texas Abortion Law is Clearly Unconstitutional, So Why Didn't the Supreme Court Rule?

Whatever your feelings may be about abortion, please step back to understand the blatantly unconstitutional measure Texas passed.
  • Author:
  • Publish date:
The Burden is Undue

Understanding the Texas Law

The Texas Heartbeat Act bans abortions once cardiac activity can be detected in the embryo. This typically occurs around the sixth week of pregnancy but many women may not even realize they are pregnant.

Moreover, cardiac activity is a misleading signal based on electrical activity but heart valves are not yet formed. Thus, there is no genuine heartbeat.  

The law makes no provision for rape or incest but does make a provision if the life of the mother is threatened. 

That would overturn Roe v Wade. The kicker is an unconstitutional enforcement mechanism that will not at all stick.

Enforcement Mechanism

Rather than risk an immediate confrontation with the Supreme Court, the Texas Law established a unique enforcement mechanism. 

The Wall Street Journal Explains

The Texas law differs from other states’ recent attempts at restrictions to severely limit abortion access, because it creates a new enforcement structure that allows private citizens to bring a civil lawsuit against abortion providers and to collect at least $10,000 in damages plus legal costs per abortion challenged successfully.

In addition, the law also allows potential lawsuits against not only clinics and doctors, but also anyone who aids or abets an abortion, including insurance companies and transportation providers

Clearly Unconstitutional

The Heartbeat Law is clearly unconstitutional. 

Q: Why?
A: It allow outside parties with no say or damages to collect at least $10,000 in damages.

Anyone who performs an abortion or even gives someone abortion advice or drives them to a clinic is subject to a $10,000 fine, by any private citizen (or thousands of them).

Point blank, that is clearly nuts. 

Q: So why didn't the Supreme Court blast this idiotic law to smithereens? 
A: Skirting the issue, the Court let the law stand until there is an actual challenge to it. 

In an unsigned order, a conservative majority acknowledged there were “serious questions regarding the constitutionality of the Texas law” but said the court might lack the jurisdiction to act because of procedural technicalities. The three liberal justices and Chief Justice John Roberts filed dissents.

In effect, someone has to break the law then file a suit. Meanwhile, there will be hundreds if not thousands of lawsuits against that person breaking the law. 

Is the Supreme Court Ready to Overturn Roe? 

Noah Feldman, a writer for Bloomberg, asks Is the Supreme Court Ready to Overturn Roe?

Spoiler: "We Don't Know".

Scroll to Continue


A day after the Constitution-flouting Texas anti-abortion law went into effect, a divided Supreme Court ruled on Wednesday that it won’t block the law before it can grapple with a concrete case that tests it in practice. 

Every nonlawyer on the planet — and no doubt a few lawyers, too — is likely to read this outcome as prefiguring a 5-to-4 vote to overturn Roe v. Wade, the 1973 precedent that made abortion a constitutional right. 

That’s a possible interpretation of the latest opinion, to be sure. But the opinion for the five conservatives explicitly denied it. “We stress,” said the justices, “that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit.” That’s lawyer-speak for saying both that the law could still be unconstitutional and that there might still be some procedural way to block its operation. For good measure, the opinion said the challengers “have raised serious questions regarding the constitutionality of the Texas law.”

But the fact remains that the majority in the Texas ruling did not address the underlying issues, so it would be premature to predict the outcome in the Mississippi case based on it.

Majority of Americans Against Overturning Roe v. Wade

Majority of Americans Against Overturning Roe v. Wade

The Texas law effectively would overturn Roe. 

Only 13% of the country agrees. That total includes 11% of independents, 4% of Democrats, and 31% of Republicans according to an NPR/Marist Poll.  

Potential Backfires

Most of the country would be quite happy with drawing the line at the first trimester except in cases where a woman's life was in danger.

Instead, we have more extreme polarization foaming up in a law that is clearly unconstitutional as anyone with an ounce of common sense understands. 

The 2022 Midterms elections are coming up.

This kind of extreme political nonsense could easily outrage independents and moderates. 

And for what? 

As soon as there is a case, the Supreme Court will be forced to do what it should have in the first place. Strike down the law.

What will the abortion abolitionists in Texas have gained? 

Nothing, other than pissing off every sensible independent and moderate in the middle, and that especially includes moderates and independents in Texas. 


The court ruling is more than a bit hypocritical as noticed by the SCOTUS Blog 

Abortion, the Death Penalty, and the Shadow Docket

Please Subscribe!

Like these reports? If so, please Subscribe to MishTalk Email Alerts.

Subscribers get an email alert of each post as they happen. Read the ones you like and you can unsubscribe at any time.