Texas Abortion Law: The Lone Star State's Controversial Move

Texas has joined the abortion law, banning the procedure in most cases. The state's abortion laws are among the most restrictive in the country, with a trigger law coming into effect on 25 August 2022, following the U.S. Supreme Court's decision to overturn Roe v. Wade. The Texas Heartbeat Act prohibits abortions after the detection of cardiac activity, usually around six weeks into a pregnancy. The law also allows private citizens to sue anyone who performs or aids an abortion for $10,000, in addition to court costs and attorney fees.

The Texas Heartbeat Act

The Act's Provisions

The Act's Rationale

The Act's proponents argue that the presence of a fetal heartbeat indicates a high chance that the baby will be born alive. They contend that, as soon from the outset of a woman's pregnancy, Texas has compelling interests in protecting the health of the woman and the life of the unborn child.

Criticisms of the Act

The Act has been criticised for undermining women's autonomy and their right to make decisions about their own sexual and reproductive health. It also limits access to medical care that is evidence-based and inhibits the delivery of safe, timely, and necessary comprehensive care. The Act's definition of "fetal heartbeat" has also been criticised as medically inaccurate, as an embryo does not have a developed heart at six weeks' gestation.

Legal Challenges

The Act has been subject to several legal challenges, including Whole Woman's Health v. Jackson, United States v. State of Texas, and Davis v. Sharp. However, these challenges have been unsuccessful thus far. In December 2021, the US Supreme Court left the door open for future challenges in lower courts, but this was subsequently shut down by the Texas Supreme Court in March 2022.

The Texas trigger law

The bill included a "trigger" provision, which meant that the law would only go into effect once a certain event occurred. In this case, the trigger was the overturning of Roe v. Wade, which occurred on June 24, 2022, when the U.S. Supreme Court issued its ruling in Dobbs v. Jackson Women's Health Organization. This decision also overturned Planned Parenthood v. Casey.

Following the Dobbs ruling, the Texas Attorney General issued an advisory letter announcing that the Texas trigger law would go into effect on August 25, 2022, 30 days after the ruling.

The law includes criminal, civil, and professional penalties for those who perform prohibited abortions. Violators can be charged with a first or second-degree felony, and each violation is subject to a civil penalty of at least $100,000. Medical licenses or permits will also be revoked. However, the law does not apply penalties to patients who receive abortions.

The Texas abortion EMTALA case

In Texas, a Republican-backed near-total ban on abortion is in effect, with the law prohibiting abortions unless the pregnancy places the woman at risk of death or "substantial impairment of a major bodily function". The Biden administration's interpretation of EMTALA would, therefore, conflict with Texas law.

In July 2022, the Biden administration issued guidance to healthcare providers reminding them of their obligations under EMTALA, which was enacted in 1986. The guidance clarified that under EMTALA, physicians must provide abortions when necessary to stabilise the patient, even in states where the procedure is banned. Hospitals that violate EMTALA risk losing Medicare funding.

Texas and two anti-abortion medical associations sued the Biden administration, arguing that the guidance unlawfully compels healthcare providers to perform abortions. In 2022, a US district judge blocked enforcement of the guidance, finding that it was an unlawful interpretation of the EMTALA statute and would allow abortions beyond what is permitted by Texas law. The US Court of Appeals for the 5th Circuit upheld this decision in January 2023, ruling that EMTALA "does not mandate any specific type of medical treatment, let alone abortion".

The Biden administration appealed to the Supreme Court to overturn the 5th Circuit's decision, citing a separate Texas Supreme Court decision that led state officials to disclaim any conflict between Texas law and the federal interpretation of EMTALA. However, in October 2024, the Supreme Court declined to hear the case, leaving the lower court's ruling in place. The Supreme Court did not provide an explanation for its decision, and there were no noted dissents.

The Texas abortion bounty law

The law includes a bounty-hunting scheme, incentivising private individuals to sue anyone in Texas who performs or aids an abortion. A reward of at least $10,000 is given to anyone who successfully sues a doctor, health centre worker, or any person who helps someone obtain an abortion after six weeks of pregnancy. Lawsuits can be filed against a broad range of people, including abortion funds providing financial assistance to patients, health centre staff, and even members of the clergy who assist abortion patients.

The law is enforced by private individuals through civil lawsuits, thereby evading pre-enforcement challenges based on Roe v. Wade. The law specifies that state officials cannot enforce it, leaving enforcement in the hands of private litigants who sue those who violate the statute. This was designed to prevent abortion providers from challenging the constitutionality of the statute before it took effect. Instead, abortion providers must wait until they are sued for violating the statute and then assert their constitutional claims defensively.

The law has also led to concerns about privacy and invasive forms of coercion. People are worried about leaving a digital footprint when seeking an abortion, and there is a fear that someone, somewhere, might report them to the authorities. This has resulted in some pregnant Texans choosing to leave the state to obtain an abortion.

The Texas abortion safe harbour law

The Act allows any person, excluding state or local government employees, to sue anyone involved in providing an abortion or intending to provide an abortion after the detection of a foetal heartbeat. This includes third parties who aid or abet the performance or inducement of an abortion, including those who pay for the abortion.

The Act provides for a civil penalty of $10,000 for anyone performing an abortion after a foetal heartbeat is detected. There is no criminal penalty, but any private citizen can sue for $10,000, as well as court costs and attorney fees.

In March 2024, the Texas Medical Board proposed guidance for exceptions to the state's multiple abortion bans, aiming to clarify what qualifies as an exception in medical emergencies. This was in response to criticism that the law falls short of providing clear exceptions and does not adequately protect life-saving care for pregnant mothers.

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