Texas Abortion Law: What's Banned And What's Not?

Texas' abortion law, which came into effect in August 2022, prohibits physicians from performing abortions once a fetal heartbeat is detected, which is usually around six weeks into a pregnancy. While there are exceptions to the law to protect the life of the mother or prevent substantial impairment of [a] major bodily function, the law is written ambiguously, and attempts to clarify these exceptions have been rejected by Republican lawmakers. The law does not make exceptions for pregnancies resulting from rape or incest. The Texas abortion law does not allow for the prosecution of the woman who had the abortion but does allow for the prosecution of anyone who provided or aided in the abortion.

What are the exceptions to the abortion ban?

The Texas abortion law prohibits physicians from performing abortions once a fetal heartbeat is detected. However, there are certain exceptions to this law.

Firstly, abortions are allowed in the case of an ectopic pregnancy, which occurs when a fertilized egg implants and grows outside the main cavity of the uterus. Secondly, abortions are permitted if a pregnant patient's water breaks too early, rendering the fetus unviable. These exceptions were included in HB 3058, which was signed into law by Governor Greg Abbott in August 2023.

In addition, the Texas abortion law includes an exception for situations where the life or health of the pregnant patient is at risk. Specifically, abortions are allowed if a licensed physician determines that the patient has a life-threatening condition and is at risk of death or "substantial impairment of a major bodily function" if the abortion is not performed. It is important to note that the term "substantial impairment of a major bodily function" is not explicitly defined in the law.

The Texas abortion law also specifies that physicians must try to save the life of the fetus unless doing so would increase the risk of the pregnant patient's death or impairment.

While these exceptions exist, it is worth noting that the law on abortion in Texas is ambiguous, and attempts to clarify and codify these exceptions have been rejected by Republican lawmakers. This ambiguity has resulted in confusion and uncertainty for both patients and medical professionals.

Who can be punished under the abortion law?

Under the Texas abortion law, the woman who had the abortion cannot be prosecuted, but anyone who provided or aided in her abortion is open to criminal prosecution. This includes medical personnel, such as doctors and nurses, as well as friends or family members who help pay for the procedure, or anyone who drives the patient to a clinic.

The Texas abortion law makes it a second-degree felony for a person who knowingly performs, induces, or attempts an abortion. The penalty is increased to a first-degree felony if the unborn child dies due to the offense. Performing or aiding an abortion resulting in the unborn child's death is a first-degree felony punishable by five to 99 years in prison, according to Texas Government Code Sec. 170A.002.

In addition to criminal penalties, there are also civil penalties for those who aid or perform abortions in Texas. The Texas abortion law allows for civil suits to be brought against anyone who provides or aids in an abortion, with a minimum penalty of $100,000, plus attorney's fees and court costs.

Furthermore, there are administrative penalties that can be imposed on medical professionals who perform abortions. Under the law, administrative penalties include the mandatory revocation of a medical, nursing, or pharmacy license.

It is important to note that the Texas abortion law does not allow for the prosecution of the woman who receives the abortion, only those who provide or aid in the procedure.

What is the Texas Heartbeat Act?

The Texas Heartbeat Act, also known as Senate Bill 8, prohibits physicians from performing or inducing abortions after a "fetal heartbeat" has been detected. This cardiac activity typically appears around six weeks into a pregnancy, which is usually before a woman knows she is pregnant. The Act does not criminalise the performance or inducement of an abortion, but instead allows civil lawsuits to be brought against physicians who provide or induce such abortions.

The Act does not specify a particular stage of pregnancy after which a physician cannot perform an abortion. Instead, it prohibits physicians from providing abortions after the detection of a "fetal heartbeat". The Act defines "fetal heartbeat" as "cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac".

Under the Act, physicians must test for a "fetal heartbeat" before performing or inducing an abortion. If they detect one or fail to test for one, they cannot proceed with performing or inducing the abortion. An exception to this rule is if the physician believes a medical emergency exists. In such cases, the physician must document the emergency in both the patient's and the physician's medical records.

The Act is enforced exclusively through private civil actions. It does not allow for public enforcement by the state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of the state or a political subdivision.

The Act allows any person, other than an officer or employee of a state or local governmental entity in Texas, to bring a civil action against any person who:

• Performs or induces an abortion in violation of the Act;
• Knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise; or
• Intends to engage in the conduct described above.

If a claimant prevails in a civil action brought under the Act, the court must award:

• Injunctive relief sufficient to prevent the defendant from violating the Act or engaging in acts that aid or abet violations of the Act;
• Statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of the Act, and for each abortion performed or induced in violation of the Act that the defendant aided or abetted; and
• Costs and attorney's fees.

What is the status of abortion in Texas now?

Abortion is illegal in Texas in most cases. The Texas abortion law prohibits physicians from performing abortions once a fetal heartbeat is detected, which is usually around six weeks into a pregnancy. This legislation, known as the Texas Heartbeat Bill, went into effect on September 1, 2021, and has sparked heated debates and legal challenges. While there are nominal exceptions to save the mother's life or prevent "substantial impairment of a major bodily function", the law is written ambiguously, and life-threatening or harmful pregnancies do not explicitly constitute an exception.

The Texas abortion law does not allow for prosecution of the mother or parent who undergoes an abortion. However, it does create a criminal cause of action against doctors and medical staff who perform or aid in the procedure. Under the law, administrative penalties include the mandatory revocation of a medical, nursing, or pharmacy license. The statute also allows the Texas Attorney General to seek a civil penalty of at least $100,000, plus attorney's fees and costs.

The Texas abortion law was triggered by the U.S. Supreme Court's decision in Dobbs v. Jackson, which overturned Roe v. Wade and allowed states to set their own abortion laws. In Texas, this has resulted in a near-total ban on abortion, with limited exceptions. The law has been challenged in court, with some temporary injunctions granted, but it remains largely in place and continues to be a controversial and divisive issue.

The impact of the abortion ban in Texas has been significant, with a dramatic rise in maternal mortality and an increase in teen pregnancies. Pregnancy-related deaths in Texas increased by 56% from 2019 to 2022, far outpacing the national average. The ban has also led to women seeking abortions out of state, as they are unable to access safe and legal abortion services within Texas.

What is the history of abortion laws in Texas?

The history of abortion laws in Texas can be traced back to the state's early days. Texas originated as a Spanish colony and later became part of independent Mexico, both of which prohibited abortion. When Texas became a republic in 1836, it continued to ban the procedure.

In 1854, Texas passed an abortion law that made performing an abortion a criminal offence, except in the case of preserving the life of the mother. This law was codified in the state's first penal code in 1857 and included a provision that made it a crime to provide medication or other means to assist in performing an abortion.

In 1973, the U.S. Supreme Court's landmark Roe v. Wade decision established a constitutional right to abortion, and Texas abortion opponents have been fighting to restrict access ever since. Despite this ruling, Texas did not repeal its abortion laws and, in some cases, continued to enforce them.

Over the years, Texas has passed numerous laws restricting abortion access, including mandatory waiting periods, parental notification/consent requirements, and restrictions on abortion providers and facilities. In 2021, Texas passed the Texas Heartbeat Act (SB 8), which banned abortion after the detection of embryonic or fetal cardiac activity, usually around six weeks into a pregnancy. This was followed by a trigger law, HB 1280, which created a first-degree felony for "providing an abortion leading to death of the unborn child", except when the mother's life is at risk.

The U.S. Supreme Court overturned Roe v. Wade in June 2022, and Texas's trigger law went into effect on August 25, 2022, making abortion illegal in most cases in the state. However, several cities in Texas, including Austin, Dallas, Denton, El Paso, and Houston, have enacted resolutions instructing city officials to deprioritize the enforcement of the state's abortion laws.

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