In September 2021, the first month after Texas implemented its new abortion law, called the “Heartbeat Act,” which bans abortions once cardiac activity is detected in the baby, usually around six weeks of pregnancy, abortions plummeted a staggering 60% from the previous month.
According to data provided by the Texas Health and Human Services Commission, 2,197 abortions were performed in Texas in September while 5,404 abortions had been performed in August. The previous months in 2021 looked like this: January 5,199; February 4,250; March 5,643, April 5,096; May 4,795; June 4,708; and July 4,566. Even considering February, the shortest month, which had the lowest number of abortions prior to September, the September number represented a roughly 50% drop in the number of abortions.
The “Heartbeat Act” states, “A physician may not knowingly perform or induce an abortion on a pregnant woman unless the physician has determined … whether the woman’s unborn child has a detectable fetal heartbeat.” The Act defines a fetal heartbeat as “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” The Act defines the gestational sac as “the structure comprising the extraembryonic membranes that envelop the unborn child and that is typically visible by ultrasound after the fourth week of pregnancy.”
The application for injunctive relief or, in the alternative, to vacate stays of the district court proceedings presented to Justice Alito and by him referred to the Court is denied. To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.
Then, in early October, after U.S. District Judge Robert Pitman issued an injunction blocking the law at the request of the Biden administration’s Justice Department, the Fifth Circuit Court of Appeals granted Texas’ request to lift the injunction. Judges James C. Ho, a nominee of President Donald Trump, and Catharina Haynes, a nominee of President George W. Bush agreed to grant the Texas request, Judge Carl E. Stewart, a nominee of President Bill Clinton, disagreed.
Biden’s Attorney General Merrick Garland had harshly attacked the Texas law on September 9, saying, “The Act is clearly unconstitutional under longstanding Supreme Court precedent. The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights.”
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