Texas Abortion Law: Did The Vote Reflect The State's Will?

Texas has some of the strictest abortion laws in the US. The state's abortion laws have been the subject of heated debates and legal challenges, with abortion rights activists arguing that the laws endanger women's lives by leaving doctors unsure of when they can act. In 2021, the Texas Legislature passed a bill outlawing abortion that would only become law once Roe v. Wade was overturned. This trigger law took effect in August 2022, 30 days after the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. The law prohibits abortions outright, except in certain circumstances, such as when the life or health of the pregnant patient is at risk. Doctors who perform abortions in violation of the law face criminal and civil penalties, including felony charges and revocation of their medical licenses. Texans do not have the ability to initiate constitutional referendums on abortion, as amendments to the Texas Constitution can only be put before voters after being approved by two-thirds of each body of the Legislature, which is controlled by Republicans.

Texas's trigger law

The trigger law was enacted on August 25, 2022, 30 days after the Supreme Court issued its judgment in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade. The Texas Attorney General's advisory letter announced that the law would go into effect on this date.

The law makes it a second-degree felony for a person to "knowingly perform, induce, or attempt an abortion." If the unborn child dies as a result, the penalty increases to a first-degree infraction. The law includes exceptions for situations where the life or health of the pregnant patient is at risk. In such cases, the abortion must be performed by a licensed physician, and the patient must have a life-threatening condition that puts them at risk of death or substantial impairment of a major bodily function.

The trigger law has faced opposition, with abortion rights advocates arguing that it restricts access to abortion in Texas, making it nearly impossible to obtain an abortion in the state except under rare circumstances. The law has also been challenged in court, with abortion providers and advocates seeking to protect abortion access and clarify the law's exceptions.

Texas Heartbeat Bill

The Texas Heartbeat Act, or Texas Heartbeat Bill, is a piece of legislation that bans abortion after the detection of a fetal heartbeat, which usually occurs around six weeks into a pregnancy. The bill was signed into law by Texas Governor Greg Abbott on May 19, 2021, and went into effect on September 1, 2021.

The Texas Heartbeat Act is unique in that it is enforced exclusively through civil lawsuits brought by private citizens, rather than criminal or civil penalties imposed by state officials. This was engineered to deny abortion providers the opportunity to seek federal-court injunctions against the enforcement of the statute. As abortion providers are unable to identify the proper defendants to sue in a pre-enforcement lawsuit, they are unable to challenge the constitutionality of the act prior to its taking effect.

The Texas Heartbeat Act has been the subject of numerous lawsuits in state and federal court, but the statute has thus far withstood each of these challenges and remains in effect. Lawsuits challenging the constitutionality of the Act have been filed by abortion providers and advocates, as well as the United States Department of Justice, but none of these lawsuits have been able to restore access to post-heartbeat abortions in Texas.

The Texas Heartbeat Act is intensely controversial. Legal experts have noted that the act's enforcement model bears similarities to existing private attorney general laws, but that its utilisation in this instance is unprecedented as it was used to deprive individuals of a federally protected right. The Act's success provided a blueprint for other states to outlaw abortion while insulating their laws from effective judicial review.

Texas Supreme Court rulings on abortion

In June 2022, the U.S. Supreme Court issued a decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade and Planned Parenthood v. Casey. This decision triggered Texas's "trigger law", a bill passed by the Texas Legislature in 2021 that outlawed abortion and would only go into effect once Roe v. Wade was overturned. The law, Chapter 170A of the Texas Health & Safety Code, prohibits abortions outright, except in certain circumstances, such as when the life or health of the pregnant patient is at risk.

The Texas Supreme Court has ruled on the state's abortion law, providing some interpretation of the law's exceptions. The Court ruled that doctors do not have to wait until a woman's life is in immediate danger to provide an abortion legally. However, the law is still considered vague, and a medical board has refused to list all the conditions that qualify for an exception. This has left doctors unsure of how to interpret the law and when they can legally terminate a pregnancy.

The Texas Supreme Court's ruling has had significant implications for abortion access and women's health in the state. Women in Texas with medically complex pregnancies are now required to carry their pregnancies to term, prompting lawsuits that have reached the state Supreme Court. The plaintiffs in these cases allege that the law is unconstitutional and vague, putting women's lives at risk and harming their mental health.

The Texas Supreme Court's interpretation of the state's abortion law has also impacted the Biden administration's efforts to ensure access to emergency abortions in certain situations. The administration argues that the Emergency Medical Treatment and Labor Act (EMTALA) requires emergency rooms to provide abortions if a pregnant patient's health or life is at serious risk, even in states with strict abortion bans like Texas. However, the Texas Supreme Court's ruling has been cited as supporting the state's position that its abortion law does not conflict with EMTALA.

The Texas abortion law and the state Supreme Court's rulings on it continue to be a contentious issue, with abortion rights activists working to push local initiatives to fund contraception and out-of-state abortion travel. The future of abortion access in Texas remains uncertain, with ongoing legal challenges and political efforts to shape abortion policy in the state.

Abortion-related victories for Democrats in red or swing states

Democrats have also made gains in red or swing states like Michigan, Kentucky, and Ohio. In Ohio, voters passed a ballot measure protecting reproductive rights, ensuring abortion's legality as the state's Supreme Court considered reinstating a six-week ban. In Kentucky, Democrat Andy Beshear won re-election as governor, campaigning on abortion rights and criticising the lack of exceptions in the state's abortion ban.

Montana is another state where Democrats have made strides. Democrat-aligned groups are working to include a state constitutional amendment protecting abortion rights on the 2024 ballot. This strategy aims to boost vulnerable Democratic Senator Jon Tester's re-election bid.

Additionally, abortion-related victories in swing states like Pennsylvania, Virginia, and Arizona have energised Democrats. These wins demonstrate that abortion remains a crucial issue for voters, and Democrats can leverage it to attract supporters, especially in red and purple states.

The Texas Constitution and abortion

The Texas Constitution does not directly address abortion. However, the state has a history of abortion laws, some of which date back to the mid-19th century. In 1854, an Act made it a criminal offence to attempt to "procure the miscarriage of any woman being with child." This was followed by the 1856 "Old Code", which formally codified the Penal Code and expanded on the abortion statutes. The state's abortion laws were found to be unconstitutional by Roe v. Wade in 1973, but Texas continued to amend and add to its abortion laws over the years.

In 2011, Texas introduced a sonogram requirement, mandating that a physician provide a sonogram at least 24 hours before performing an abortion. The doctor was also required to display the sonogram, describe the images, and make the heartbeat audible for the patient. In 2013, Texas passed admitting privilege requirements, mandating that physicians performing abortions have admitting privileges at a hospital within 30 miles of the procedure. The state also introduced heightened abortion clinic standards and prohibited abortions after 20 weeks of "post-fertilisation".

In 2016, the Whole Woman's Health v. Hellerstedt case struck down several of Texas's abortion laws, including the admitting privilege requirements and heightened abortion clinic standards, due to the "undue burden" they posed to abortion access. Despite this, Texas continued to pass new abortion restrictions, such as the Woman's Right to Know Act in 2017, which banned "partial-birth" and "dismemberment" abortions and imposed restrictions on fetal tissue disposition.

In 2021, Texas passed the "Texas Heartbeat Act" (SB 8), prohibiting abortion after a fetal heartbeat is detected and allowing civil lawsuits against anyone who provides or facilitates an abortion. This was followed by House Bill 1280, which created Chapter 170A of the Texas Health & Safety Code, effectively banning abortions with certain exceptions. Under Chapter 170A, performing an abortion is a criminal offence, punishable by a first or second-degree felony. The bill also imposes civil and professional penalties for prohibited abortions.

While other states have voted or will vote on constitutional amendments related to abortion, Texans do not have the ability to initiate constitutional referendums. Amendments to the Texas Constitution can only be put before voters after being approved by two-thirds of each body of the Legislature, which is controlled by Republican lawmakers.

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