Madlin MekelburgAustin American-Statesman
Gov. Greg Abbott signed into law Wednesday legislation that prohibits abortion once a fetal heartbeat is detected, effectively banning most abortions in the state.
The restriction puts Texas at the vanguard among states challenging the boundaries of Roe v. Wade, the 1973 landmark Supreme Court case that established a woman’s legal right to an abortion.
Senate Bill 8, a priority for Republican state lawmakers, would allow virtually any private citizen to sue an abortion provider or others who “aid and abet” an abortion in violation of the new ban.
The bill sailed through the Senate and House, despite fervent opposition from Democrats. Flanked by Republican lawmakers in his Capitol office, Abbott made good on his promise to sign the bill at a ceremony that was closed to the media and broadcast on Facebook.
“Our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion,” Abbott said before signing the bill. “In Texas, we work to save those lives, and that’s exactly what the Texas Legislature did this session.”
In 2020, the state reported about 53,000 abortions, according to data from the Texas Health and Human Services Commission. The data show that the number of abortions performed in Texas annually has declined dramatically since 2001.
Abortion law effective Sept. 1
There is not a specific time frame tied to SB 8. Fetal heartbeats can be detected as early as six weeks gestation — or six weeks from a woman’s last menstrual period, not since the start of her pregnancy — according to the American Congress of Obstetricians and Gynecologists.
“When a heartbeat is detected, that innocent unborn life is protected!!” tweeted Rep. Shelby Slawson, R-Stephenville, author of an identical bill in the House.
Opponents of the law, which goes into effect Sept. 1, argue that it would prohibit abortions before most women are even aware they are pregnant, effectively outlawing the procedure. It also does not include exceptions in cases of rape or incest, a caveat that has long been the standard in abortion laws.
“For a person with a normal menstrual cycle, that is only two weeks after a missed period,” said Dyana Limon-Mercado, executive director of Planned Parenthood Texas Votes, in a statement. “When you factor in the time it takes to confirm a pregnancy, consider your options and make a decision, schedule an appointment and comply with all the restrictions politicians have already put in place for patients and providers, a six-week ban essentially bans abortion outright.”
The proposal was part of an aggressive agenda from abortion opponents during this year’s legislative session, which included numerous proposals designed to severely limit the availability of the procedure, with an eye to the changing power dynamics at the Supreme Court. Conservatives now hold a 6-3 majority on the high court.
Drucilla Tigner, a policy and advocacy strategist at the American Civil Liberties Union of Texas, said the new law is “the most extreme abortion ban in the country.”
“Not only does this ban violate more than half a century of Supreme Court case law, it paves the way for anti-choice extremists to use our court system to go after anyone who performs abortions or considers supporting a person that has one,” Tigner said in a statement. “But make no mistake, abortion is both legal in Texas and supported by the majority of Texans. The governor’s swipe of a pen can’t change the Constitution.”
Sen. Bryan Hughes, R-Mineola, author of SB 8, said he hopes it will serve as an example for other states looking to restrict abortion.
“The Texas Heartbeat Act is the most powerful pro-life legislation in Texas history and will stand as a model for the country,” he said in a tweet.
Federal judges have blocked similar laws in other states, but proponents of the legislation in Texas are hopeful that by prohibiting public officials from enforcing the law and leaving it up to private citizens to sue violators, the law can pass legal muster.
This provision of the law has drawn intense criticism from lawyers, 400 of whom wrote a letter to lawmakers warning that the language used in the legislation is “exceptionally broad” and would create an “unprecedented” cause of action that “subverts the foundations of our judicial system.”
Legal experts have said that prohibiting enforcement of the ban by public officials will not protect the law from legal challenges.
Elizabeth Sepper, a University of Texas law professor, told the American-Statesman in March that it is “unlikely that a federal court is going to fall for this” strategy employed in the legislation.
“You can’t attempt to strip constitutional rights by requiring someone to go into state court when they face a lawsuit from another private citizen,” she said. “Federal courts would immediately say, ‘Hey, wait a second: You can’t cut off the U.S. Constitution by framing what’s really a state law as a private matter between citizens.’”
Elizabeth Nash, principal policy associate at the Guttmacher Institute, said the civil action created through the law is “uniquely cruel.”
“By allowing anyone, anywhere to sue people involved in providing or obtaining an abortion, this ban would open the floodgates for frivolous lawsuits, bury clinics under court cases and legal fees, and make it difficult for providers to remain open,” Nash said in a statement. “This ban in Texas is clearly about controlling pregnant people’s bodies and preventing them from making decisions about their lives and futures.”
Lawmakers tweaked one element of the proposal before sending it to Abbott for approval and opted to explicitly limit the civil action created through the law to violations of the ban on abortions once a fetal heartbeat can be detected. Opponents argued that the original version of the legislation could have allowed for lawsuits to be filed against abortion providers and others for violations of any abortion-related regulation.