Motion for Leave to File Brief Out of Time and Brief of Amicus Curiae Indiana Tech Law School Amicus Project in Support of Petitioners
26 Pages Posted: 21 Jan 2016
Date Written: January 12, 2016
Abstract
The purpose underlying the challenged provisions of Texas House Bill No. 2 (H.B. 2) has little to do with protecting women’s health. Rather, the Texas legislature enacted H.B. 2 to effectively overrule Roe v. Wade and eliminate abortions in Texas. As former Governor Rick Perry declared when signing H.B. 2 into law, “[m]y goal, and the goal of many of those joining me here today, is to make abortion, at any stage, a thing of the past.” That goal, however well-intentioned, is precisely why the challenged provisions of H.B. 2 cannot withstand constitutional scrutiny.
To begin with, states have an obligation to enforce, not eviscerate, fundamental constitutional rights. As this Court has held, when federal constitutional rights are at issue, states “must provide procedures which are adequate to safeguard against infringement of constitutionally protected rights.” As a corollary, states may not seek to accomplish through the legislature – here effectively overruling Roe – what they would not be able to accomplish through the courts. In other words, “[w]hat the state may not do directly it may not do indirectly.” Yet, that is precisely what Respondents, in enacting the challenged provisions of H.B. 2, strive to accomplish.
Keywords: abortion, Whole Woman's Health v. Cole, Fourteenth Amendment, Roe v. Wade, Planned Parenthood v. Casey
JEL Classification: K40
Suggested Citation: Suggested Citation