Texas Heartbeat Law: Legality and Implications

By Priya Sharma

The “heartbeat law” of Texas took effect on September 1. Abortion providers in the state have closed down and the people are apprehensive of what comes next.

The Texas Heartbeat Act, officially known as Senate Bill 8, implements a near-total ban on abortions in the state of Texas. It bans abortions once the “fetal heartbeat” is detectable, which is as early as six weeks in most people. The act allows any person, who is not required to have any connection with the patient or the abortion provider, to sue another person who performs or induces an abortion, and any person who aids or abets the performance of the abortion procedure. This may include people ranging from doctors and nurses who work at the abortion clinic to lawyers, advisors, and even people involved in the transportation of the person seeking an abortion to and/or from the abortion clinic. 

The Act incentivizes the civil enforcement of the act, promising an amount of $10,000 as statutory damages and reimbursement of all legal costs to the plaintiff if the suit succeeds. Also, the burden of proving that the abortion was in compliance with the law is on the defendant.

It is crucial to note that the act gives no exceptions to the cases of rape or incest. Abortion is allowed only in case of extreme complications.

The act differs from the previous attempts to regulate or ban abortions in the US states, in that it does not establish a state enforcement of the law, but civil enforcement, which can allow any private party to sue another person in the suspicion of providing abortion. This way, the abortion providers cannot sue the state seeking an injunction against the enforcement of the statute, because they are not the ones enforcing it. The power rests in the hands of the public, majorly composed of pro-life supporters in the Republican-dominated state, to file a suit against anyone. Therefore, there is uncertainty about how exactly to seek a stay on the law. 

Six weeks is a short time for people to realize that they are pregnant. Healthline says that a “pregnancy is counted from a person’s last menstrual cycle. That means that once a person misses their first period they may be considered four weeks pregnant whether or not the conception occurred four weeks prior.” Thus, a short window of two weeks is all that is available for people to schedule and undergo an abortion procedure. It is a de facto ban on all abortions in the state, even though the act doesn’t explicitly say so. 

The Court had also refused to temporarily block the law, with a 5-4 majority.

Nationally, abortion is legal throughout the US. The landmark case that legalized abortions was Roe v. Wade (1973), along with the lesser-known case of Doe v. Bolton. The latter outlawed most restrictions on abortions in the first trimester of the pregnancy, though few regulations were allowed thereafter. The ruling of the 1992 case Planned Parenthood v. Casey further reinforced this judgment. The Texas law seems to be a direct breach of the judgment, and that is something for the US Supreme Court to decide on in its next session. The right-leaning Supreme Court, composing justices like Amy Coney Barrett, who was appointed by Donald Trump and has expressed her opposition to abortion rights, is thus set to decide whether to overturn Roe v. Wade. If such an action were to happen, it would cause similar pro-life legislation to be brought up in other Republican states like Mississippi, Kentucky, Ohio, Alabama, Georgia, and Missouri. The Court is set to hear a case (Dobb v. Jackson Women’s Health Organisation) regarding a Mississippi abortion law, which bans most abortions after 15 weeks, in December. The judgment of this case would determine whether Roe v. Wade is upheld or not.

Even though the plaintiff is not required to be directly affected by the abortion, they are empowered to sue and claim the “bounty” of $10,000 and recompensation of the costs incurred during the lawsuit. Numerous pro-life coalitions have formed in the state, in which people can give anonymous tips accusing a person of aiding an abortion.

The act has also limited the defense options of the defendant. It says that “ignorance or mistake of law”, “a belief that the law is unconstitutional” and “defendant’s reliance on a court decision that has been overruled or not” are not defenses. Also, the defendant cannot argue that the right to abortion is constitutionally protected, thereby limiting the scope of using Roe v. Wade as a defence.

The law prevents the perpetrator of rape, sexual assault or incest from suing the abortion provider. However, it does not prevent other people from suing over the abortion, even if it resulted from the above-mentioned activities.

A 1976 report by the Centers for Disease Control and Prevention (CDC) said that the number of illegal abortions in the country before the legalization was 130,000 (1972). Out of these, there were 39 deaths due to complications, the majority of whom were black and more than 12-weeks pregnant. The number plummeted to 17,000 by 1974. The importance of abortion as healthcare cannot be overlooked. The people who try to self-induce an abortion risk facing fatal consequences. A rise in such cases is possible in the near future. Also, those people who are unprepared to raise a child may face psychological and/or socio-economic ramifications.

Abortions are banned after a heartbeat on a transvaginal ultrasound is detectable. The pro-life narrative says that such a heartbeat indicates that the fetus is alive. However, the sound detected through the ultrasound isn’t a heartbeat, but instead, electric impulses, because an embryo doesn’t have a heart at just six weeks of gestation. 

The Mississippi abortion law hearing will be the first such case to be dealt with by the now-conservative majority Supreme Court. Thus, the case may be the next landmark ruling and will decide the fate of such laws and whether the right to abortion is upheld as a constitutional right.