On Sept. 22, a member of the Florida House of Representatives introduced the Florida Heartbeat Act, a bill that would restrict abortions as soon as six weeks after conception. The bill is reminiscent of the law recently passed in Texas stating that an abortion may not be performed if the medical practitioner has detected a fetal heartbeat or has not performed a test to detect a fetal heartbeat, which is stated to be detectable around six weeks of gestational age.
Both laws would penalize anyone performing, aiding or receiving an abortion that did not meet these qualifications. Unlike the Texas Heartbeat Act, the proposed Florida Heartbeat Act includes exceptions under instances of rape, incest and medical emergencies.
If this bill were to be passed into law, Florida would be joining a number of mostly Southern states that already have restrictive abortion laws in place; some still being fought over in the courts. While Florida Governor Ron DeSantis has signaled support for this type of legislature, the bill won’t be heard until the 2022 session begins in January.
Vicki Toscano, associate professor of philosophy and legal studies at NSU, noted that the Texas Heartbeat Act, and those bills modeled after it, are unprecedented due to one minor change in how the bill would be enforced.
“When they wrote the bill in Texas, they made it so that it is not the state or any state officers who would enforce the bill, but rather individual citizens who could sue [anyone who received or aided in performing an abortion] for $10,000,” Toscano said.
Toscano added that when restrictive abortion laws are passed by a state, usually they are taken to district court and enjoined under Roe vs. Wade, which declares that a woman has a right to obtain an abortion in the first trimester of pregnancy or when there is a medical risk to the mother. When a law is enjoined by the district court, it is not allowed to go into effect until the court is able to determine the merits of the case.
However, when the Texas Heartbeat Act was turned over to the district courts, they failed to grant an injunction because the state would be relying on citizens to enforce the law. The case was then taken to the Supreme Court, who – in a shocking move – also declined to block the law due to its unprecedented status.
Stephen Ross Levitt is an associate professor in the department of humanities and politics at NSU. Both he and Toscano noted that the way the Texas law avoided an injunction by the district court and Supreme Court sets a dangerous precedent for other laws regarding partisan issues.
“This trick to get around an injunction could be used in a variety of different ways. For example, if there was a really left leaning state that was against gun rights, they could pass a law that says you’re allowed to own guns but if any citizen knows you own a gun they could sue you for $10,000,” Toscano explained.
“The Supreme Court isn’t saying that they think it’s constitutional, they’re saying they won’t grant an injunction because the application for injunction presents complex and novel antecedent procedural questions on which they have not carried their burden. It’s a little bit of a trick to implement the law in a roundabout way,” Levitt added.
Some have noted that by allowing the Texas law to stand without an injunction is a signal that may point to the eventual overturning or limiting of Roe v. Wade. The Supreme Court is already set to hear arguments near the end of this year from Mississippi, which seeks to ban most abortions after fifteen weeks. While the Mississippi law is not styled after the Texas Heartbeat Act, the rollback or restriction of Roe v. Wade during this hearing would toss the responsibility of regulating abortion back to a state level, which then could see laws similar to the one proposed in Florida and passed in Texas to become the law with less ground for legal pushback.
While many southern states have restrictive abortion laws already in place, some states do have rules that protect a woman’s right to an abortion.
“Part of Washington state’s constitution is that the state may not deny or interfere with a woman’s right to choose or have an abortion prior to the viability of the fetus or to protect her life or health. Therefore, if Roe v. Wade is kicked out by the Supreme Court or limited, it’s not going to affect the Washington state constitution,” Levitt explained.
Ultimately, the future of bills like the Texas Heartbeat Act and the proposed Florida Heartbeat Act rely on whether the Supreme Court upholds Roe v. Wade. Currently the U.S. constitution protects a woman’s right to seek an abortion to the point of viability usually in the second trimester or if there are medical risks associated with the pregnancy.
If Roe v. Wade was overturned by the Supreme Court, it would be up to whoever has the majority rule in a state government to define when, if at all, a woman may seek an abortion and under what circumstances.
