Texas 'Heartbeat Act': Why Dems' Attempt to Override Law May Cause US Deep Political Crisis
15:12 GMT 04.09.2021 (Updated: 13:23 GMT 06.08.2022)
The US Supreme Court has refused to block a new Texas' 'Heartbeat Act' banning abortions as early as six weeks into term and allowing private citizens to sue abortion providers as well as those who aid them. US academics John Tures and Stephen B. Presser have discussed what steps the US president or Congress could take regarding the new law.
The Texan Senate Bill 8 took effect on 1 September stipulating that abortions must be restricted after fetal heartbeats are detected
. The 'Heartbeat Act' prompted US rights groups, including the American Civil Liberties Union, Center for Reproductive Rights, and Planned Parenthood to file an emergency request with the US Supreme Court on 30 August asking it to block the Texan legislation.
After the US Supreme Court voted 5-4 in favour of the new Texas law, House Speaker Nancy Pelosi vowed to take up a Bill that would limit states from banning access to abortion. Pelosi highlighted that there is a need to "codify Roe v Wade," referring to the Supreme Court 1973 decision which ruled that access to abortion is a constitutional right. For his part, President Joe Biden ordered White House lawyers to find out whether federal agencies could intervene to provide abortion access in the states which banned the procedure. However, on 3 September, the president told the press that he was not certain that the federal government could overturn the new Texas legislation.
Could the President or Congress Overturn the 'Heartbeat Act'?
The US President could disregard the US Supreme Court's ruling and intervene to challenge the Supreme Court’s decision on the Texas abortion law, but such a move would lead to a major political crisis in America, says John Tures, political science professor at LaGrange College in Georgia.
"The biggest weakness of the Supreme Court is that its power of judicial review is not vested in our US Constitution," he says.
"It comes from an early Supreme Court case, the precedent of Marbury v Madison," Tures explains, referring to the landmark 1803 US Supreme Court case that established the principle of "judicial review" in the country by giving American courts the power to strike down laws and statutes which violate the Constitution of the United States.
Although the president's interference in the 'Heartbeat Act' is fraught with political risk, it is doubtful that the Senate would pass Pelosi's federal law to "codify Roe v Wade," according to Stephen B Presser, leading American legal historian and professor of law at Northwestern University.
"The basic problem is that there is no Constitutional warrant for that kind of legislation, since domestic policy (such as family law) is supposed to be reserved to the states, not the federal government," he says. "This was the basic error made by Roe v Wade, and I do not believe the federal courts would uphold such a federal law, were it ever to be passed."
Centralisation of Authority Threatens Rights of the States
At the same time, the Democrat Party's strategy to roll back abortion restrictions pushed by Texas and some other states
through a federal law creates a dangerous precedent as this could lead to erosion of the state's rights and freedoms, according to the professor.
"The central problem facing the United States at this point is the unbelievable growth and power of the federal government in general and the federal bureaucracy (which Trump quite properly called 'the deep state') in particular," he points out.
The legal expert argues that "the decentralisation of political power, and the flow of power back to the state and local governments ought to be the defining issue in American politics moving forward."
"Either that must happen, or pressures will continue to build until the United States may well cease to exist in its current form and it fragments into a number of smaller republics," Presser warns.