RACHEL MARTIN, HOST:
The Supreme Court says the state of Texas can move forward with its new law to ban abortions after a fetal heartbeat is detected. This happens usually after six weeks, which is often before women even know they're pregnant. This is the strictest anti-abortion law passed since the landmark Roe v. Wade decision in 1972 granted women the right to a legal abortion. This decision was released overnight. The court decided to deny an emergency appeal from abortion providers that sought to block the enforcement of the law that went into effect yesterday. Joining us now to talk about the effect of the decision, NPR's legal affairs correspondent Nina Totenberg. Nina, good morning.
NINA TOTENBERG, BYLINE: Good morning, Rachel.
MARTIN: The majority in the court stressed that it was not ruling on the constitutionality of the Texas law. What specifically did they take issue with?
TOTENBERG: Well, this law is different than any other restriction on abortion that's been enacted by states in the past and blocked by the lower courts and the Supreme Court consistently. This law delegates enforcement not to the state officials, but to any individual in the state who can sue the clinic, sue individuals, sue, potentially, staff members who man the front desk, sue, potentially, family members, people who drive abortion patients to the clinic. This law is very different. The majority acknowledged that the abortion providers had raised serious questions regarding the constitutionality of the Texas law. But, they said, because of the way the law operates, those constitutional questions were not enough to stop the law from going into effect. And this is dramatic evidence that the right to terminate a pregnancy is on very, very shaky grounds at the Supreme Court and has a very difficult future with three conservative justices who were nominated by President Trump now on the court. And the bottom line is the court now has a 6-3 conservative supermajority, with all six having taken positions hostile to abortion rights at one time or another. And in this case, the conservatives had room to lose a vote, which they did from the chief justice.
MARTIN: Right. So Justice - Chief Justice John Roberts joined with the liberal justices in dissenting. What did he say?
TOTENBERG: He called the Texas law unprecedented, said it insulated the states from responsibility. He said he would have temporarily blocked the law from going into effect in order to give the lower courts adequate time to hear and decide whether a state - and here, I'm quoting - "can avoid responsibility for its laws" by "essentially delegating enforcement to the populace at large."
MARTIN: The court previously hasn't allowed fetal heartbeat bills to stand. So explain how it is so that the court has decided to let this exist. And what does this portend for Roe v. Wade?
TOTENBERG: The legislature did a very specific, unusual and legally controversial thing here. Normal people who enforce the law won't be enforcing the law. Instead, individuals on the street, anybody without a vested interest even can sue anyone who aids and abets. They don't have to have, you know, a stake in the individual case at hand, which is the normal way to challenge the law. So this - you can't sue a state official for failing to - for the way it's enforcing this law or enforcing the law at all. Instead, you have to deal with, you know, one or 10 or hundreds or thousands or tens of thousands of individuals who may bring lawsuits for damages against individuals who aid and abet the performance of abortion.
MARTIN: But the court didn't - it sounds like they - they said that this was highly unusual. But the majority decided that that's OK to empower citizens in this way.
TOTENBERG: They didn't say that. They said that there wasn't enough, empowering citizens wasn't enough to get to this question right now. Wait, and maybe we'll take it up later. If you bring us an individual case where somebody has actually been sued.
MARTIN: And meanwhile, the law is allowed to take effect. I mean, what will this mean for abortion access across the country?
TOTENBERG: Well, it sends a signal as to what the court might do in Roe in the future. As I said, it's on very shaky grounds. And finally, Texas is being allowed to - this Texas law being allowed to stand has other implications. If this system of attacking state law by private citizens is OK for abortion, is it OK for New York to do the same thing for guns? Could it pass very strict gun rules and say individual citizens can enforce them? It's a very different way of approaching law enforcement in this country. And it has no precedent in how we've done this in the past.
MARTIN: NPR legal affairs correspondent Nina Totenberg. Thank you.
TOTENBERG: Thank you.
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