Texas Heartbeat Act
The Texas Heartbeat Act, officially known as Senate Bill 8 (SB 8), is a significant and contentious piece of legislation that was enacted on September 1, 2021. It prohibits abortions after approximately six weeks of pregnancy, a point at which many women may not yet be aware they are pregnant. The law allows for exceptions only in cases of medical emergencies threatening the woman's life, explicitly excluding situations of rape or incest. One of the most controversial aspects of SB 8 is its mechanism for enforcement, which permits private individuals to sue anyone aiding or performing an abortion, thus circumventing traditional state enforcement.
This legislation emerged in a broader context of increasing restrictions on abortion rights in several states across the U.S. Following its enactment, the Supreme Court's June 2022 decision in Dobbs v. Jackson Women's Health Organization further solidified the legal standing of state laws like SB 8 by overturning Roe v. Wade, effectively returning the authority to regulate abortion to the states. As a result, the Texas Heartbeat Act has led to a near-total ban on abortion in Texas, prompting significant legal challenges and sparking widespread public debate on reproductive rights and healthcare access.
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Texas Heartbeat Act
The Texas Heartbeat Act, Senate Bill 8 (SB 8), was, at the time of its enactment, the most restrictive law affecting access to abortion in the United States since the 1973 Roe v. Wade decision. It took effect at midnight on September 1, 2021. It outlaws abortions after six weeks, or the time when anti-abortion activists claim the embryo has a heartbeat. The law includes exceptions for medical emergencies that threaten the life of the woman but not for pregnancies that result from rape or incest.
The law is controversial because it allows nearly any person to sue a Texas doctor who performs or intends to perform an abortion or any person who helps a woman obtain an abortion in any way. SB 8 was one of multiple laws passed by Republican-controlled state legislatures to limit or prohibit women from obtaining abortions. In June 2022, the Supreme Court overturned Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization case. This decision further strengthened the Texas Heartbeat Act.
Background
The landmark Roe v. Wade decision issued January 22, 1973, addresses a statute in Texas that banned abortion. The US Supreme Court issued its decision that a woman’s right to an abortion was covered by the Fourteenth Amendment, which protects one’s right to privacy. With this decision, abortion was deemed legal in all US states.
Abortion in the United States was legal until the late nineteenth century. Women could terminate a pregnancy before the quickening or the feeling of movements of the fetus. This typically occurs around the fourth month of pregnancy. A few laws of the 1820s and 1830s restricted access to drugs some women used that could be fatal, but they remained available.
The fight to outlaw abortions began in earnest when doctors formed the American Medical Association in 1847. Many doctors resented midwives, who assisted women through pregnancy and childbirth, and homeopaths, alternative medicine practitioners who believed that health conditions could be treated with highly diluted substances such as herbs and crushed insects. Both midwives and homeopaths were involved in helping women with abortions. Seeking to eliminate competition, these doctors began to call for the criminalization of abortion.
Others opposed abortion for various reasons. Many nativists, particularly those in the influential Know-Nothing movement, were unhappy about the growing immigrant population. They wanted to halt abortions to increase birth rates among White, Protestant, American-born women. Most states outlawed abortion by the 1880s.
Outlawing abortion did not prevent the procedure. Individuals set up back-alley abortion clinics, and some women performed, or attempted to perform, abortions on themselves. Researchers estimate that between 200,000 and 1.2 million illegal abortions took place annually in the 1950s and 1960s.
Roe v. Wade came about when an impoverished woman in Texas, Norma McCorvey, sought an abortion. While women of means could leave the country for the procedure, McCorvey could not afford this option, nor was she able to arrange an illegal abortion. Two Texas attorneys took her case to challenge state laws prohibiting most abortions. McCorvey was known as Jane Roe in court documents to protect her privacy. The other party in the lawsuit was Henry Wade, the district attorney of McCorvey’s home county. The US Supreme Court left the decision to abort during the first trimester to the woman. The government could regulate but not ban the procedure during the second trimester, but states could prohibit abortions in the third trimester if the fetus was viable, except in cases when the woman’s life was in danger.
Overview
The Texas House passed the SB 8 bill on May 6, 2021. The vote was mostly along party lines, with eighty-two Republicans and one Democrat voting yes. Sixty-four Representatives, all Democrats, voted no. It was passed by the Senate on May 13. Seventeen Republicans and one Democrat voted in favor, while twelve Senators, all Democrats, voted against it. Republican Governor Greg Abbott signed the bill into law on May 19. It took effect on September 1, 2021.
Women’s health practitioners noted that SB 8 established a near-total ban on abortions in Texas. Challengers said that 85 to 90 percent of abortions in Texas take place after the sixth week of pregnancy. Pregnancies are dated from the first day of the woman’s last period. Women are often unaware they are pregnant at six weeks.
Critics charged that proponents of SB 8 misled Texans by calling it a “heartbeat bill.” The law states that a doctor may not perform an abortion if the physician detects a fetal heartbeat. A six-week-old embryo does not have a heart with valves opening and closing, so a physician cannot hear it using a stethoscope, but some developing tissue sends electrical impulses. These flickers of electricity are detected by the ultrasound machine, which manufactures a corresponding sound.
Clinics asked the US Supreme Court to block enforcement of the law while they fought it. However, five conservative justices employed a practice known as the shadow docket, making a ruling without hearing arguments or reviewing a full briefing. In a vote of five to four, late on September 1, the Court issued a ruling that amounted to a refusal to act. Critics denounced this inaction, noting that the Supreme Court’s own precedent prohibited states from banning abortion in the first trimester, or from zero to thirteen weeks, and only permitted states to regulate the procedure during the second trimester, or fourteen to twenty-six weeks. Fetal viability, or the stage at which a fetus might survive outside the womb, is about twenty-four weeks. Challenges in lower federal courts were in the works. Attorneys representing abortion providers named every Texas trial court judge, county court clerk, and other officials in their suit.
SB 8 was written in a way that made challenging it difficult. Lawsuits asking the court to block a law usually name state officials as defendants, as in Roe v. Wade. However, SB 8 prevents state officials from enforcing it. Instead, it contains a provision allowing private individuals to sue anyone who aids and abets or performs an abortion, although the patient may not be sued. This could include health care providers, but also people only indirectly related (such as a taxi driver who takes the woman to the clinic) or anyone who helps pay for the procedure. Plaintiffs do not have to live in the state or have any connection to the patient. If they win the lawsuit, the plaintiffs are entitled to their legal fees and at least $10,000 from the defendants. Defendants who succeed in fighting the suit are not entitled to recover their legal fees.
In June 2022, the Supreme Court overturned Roe v. Wade in their Dobbs v. Jackson Women’s Health Organization ruling. In the Dobbs case, the Jackson Women's Health Clinic, the only provider of abortions in the state of Mississippi, challenged a similar law to the Texas Heartbeat Act, known as the Gestational Age Act. This law banned abortions after fifteen weeks of gestation. The clinic argued that the law violated the federal mandate of Roe v. Wade. The Supreme Court upheld the Mississippi law, making decisions on abortion a state issue. This decision only reinforced restrictive state abortion laws like the Texas Heartbeat Act. Although the Texas Medical Board has insisted that clarifications to the law must be made, almost all abortions in Texas are illegal except when there is a risk to the mother's life due to a medical emergency.
Bibliography
Austin American—Statesman Staff. “Here’s Who Voted for (and Against) Texas’ New Abortion Law in the House and Senate.” Austin American—Statesman, 3 Sept. 2021, www.statesman.com/story/news/politics/state/2021/09/03/texas-abortion-law-heres-how-lawmakers-voted-heartbeat-bill-legislature/5706081001. Accessed 20 May 2024.
History.com Editors. “Roe v. Wade.” History, 15 May 2019, www.history.com/topics/womens-rights/roe-v-wade. Accessed 14 Sept. 2021.
Hutzler, Alexandra. “Architect of Heartbeat Bills Praises ‘Historic’ Texas Law, Says More Bans are Coming.” Newsweek, 1 Sept. 2021, www.newsweek.com/architect-behind-heartbeat-bills-praises-historic-texas-law-says-more-bans-are-coming-1625202. Accessed 20 May 2024.
Irvine, Bethany. “Why ‘Heartbeat Bill’ Is a Misleading Name for Texas’ Near-Total Abortion Ban.” Texas Tribune, 2 Sept. 2021, www.texastribune.org/2021/09/02/texas-abortion-heartbeat-bill/. Accessed 14 Sept. 2021.
Klibanoff, Eleanor. “After Dobbs Judgment, Texas' New Abortion Ban Takes Effect Aug. 25.” The Texas Tribune, 26 July 2022, www.texastribune.org/2022/07/26/texas-abortion-ban-dobbs. Accessed 20 May 2024.
KVUE Staff. “The ‘Texas Heartbeat Act’ Has Raised a Lot of Questions. Here are the Answers to Your Most-Asked.” KVUE ABC, 3 Sept. 2021, www.kvue.com/article/news/politics/texas-heartbeat-bill-sb-8-abortion-questions/269-a9a6653f-5e83-4ed2-ae7f-f029b190536b. Accessed 20 May 2024.
Liptak, Adam, J. David Goodman, and Sabrina Tavernise. “Supreme Court, Breaking Silence, Won’t Block Texas Abortion Law.” The New York Times, 13 Sept. 2021, www.nytimes.com/2021/09/01/us/supreme-court-texas-abortion.html. Accessed 14 Sept. 2021.
McCardel, Michael, and Jason Whitely. “The ‘Heartbeat’ Abortion Bill Was Not a Priority for Texas Republicans Two Years Ago. What Changed?” WFAA ABC, 23 May 2021, www.wfaa.com/article/news/politics/inside-politics/texas-politics/the-heartbeat-abortion-bill-was-not-a-priority-for-texas-republicans-two-years-ago-what-changed/287-900d4dd3-b215-4cb0-a39b-67a007c69f5e. Accessed 20 May 2024.
“Roe v. Wade.” Center for Reproductive Rights, reproductiverights.org/roe-v-wade. Accessed 20 May 2024.
Simmons-Duffin, Selena. “The Texas Abortion Ban Hinges on ‘Fetal Heartbeat.’ Doctors Call that Misleading.” National Public Radio, 3 Sept. 2021, www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnt-a-medical-term-but-its-still-used-in-laws-on-abortion. Accessed 14 Sept. 2021.