Texas Abortion Law: Overturned Or Still Standing?

The Texas abortion law, also known as Senate Bill 8 (SB 8), prohibits physicians from performing abortions once a fetal heartbeat is detected, which is usually around six weeks into a pregnancy. The law has faced several legal challenges, with a federal judge temporarily blocking its enforcement in 2021 and 2024. However, as of October 2024, the law remains in effect, and Texas abortion providers continue to face restrictions. The law has sparked protests and debates across the state, with abortion rights advocates declaring victory in a recent case where a man sued women for allegedly helping his ex-wife obtain an abortion.

The Texas Heartbeat Bill

The bill amends the Texas Health and Safety Code by adding a subchapter called "Detection of Fetal Heartbeat". This subchapter defines a "foetal heartbeat" as "cardiac activity or the steady and repetitive rhythmic contraction of the foetal heart within the gestational sac". It also defines "gestational age" as the amount of time elapsed from the first day of a woman's last menstrual period.

Under the Texas Heartbeat Bill, a physician may not knowingly perform or induce an abortion on a pregnant woman unless they have determined whether the foetus has a detectable heartbeat. The bill provides an exception for medical emergencies, in which a physician believes that compliance with the law would pose a risk to the pregnant woman's life or health.

The bill authorises private civil enforcement actions, allowing any person (other than an officer or employee of a state or local government entity) to bring a civil action against anyone who performs or induces an abortion in violation of the law. This includes anyone who "aids or abets" the performance or inducement of an abortion, such as by paying for or providing abortion medication. The minimum statutory damages for each abortion performed or induced in violation of the law are set at $10,000.

The Texas Supreme Court's ruling on Zurawski v. State

On May 31, 2024, the Texas Supreme Court issued its ruling in Zurawski v. State, a case that sought to clarify the scope of Texas's "medical emergency" exception under its state abortion bans. The lawsuit was filed by the Center for Reproductive Rights on behalf of 22 plaintiffs, including 20 women who were denied abortions despite dire pregnancy complications, and two obstetrician-gynecologists.

The case argued that Texas's abortion bans contain conflicting language and non-medical terminology, making it unclear when physicians are permitted to provide care under the "medical emergency" exception. The plaintiffs claimed that the vague language of the law endangers women's lives, as doctors are unsure of when they can act.

The Texas Supreme Court, however, rejected the claims brought by the plaintiffs and refused to clarify the exceptions to the state's abortion bans. The Court upheld the three abortion laws in Texas: a trigger ban that outlaws abortion entirely, SB 8 or the "vigilante" ban that prohibits abortion after about six weeks of pregnancy, and a pre-Roe criminal ban.

The Court's opinion stated that Texas law permits a physician to address the risk posed by a life-threatening condition before a woman suffers the consequences. The Court asserted that a physician can inform a patient of a life-threatening complication and, in the same breath, state that they are legally permitted to provide an abortion in such circumstances.

The Texas Supreme Court concluded that the plaintiffs had not shown that the Texas abortion law was unconstitutional and that the law's exceptions are broad enough. The Court's ruling highlighted that doctors would be misinterpreting the law if they declined to perform an abortion when the mother's life is in danger.

This decision by the Texas Supreme Court closed another pathway for opponents seeking to force the state to provide more clarity on when medically necessary exceptions are allowed under the abortion bans.

The Biden administration's federal abortion guidance

The Biden administration has taken several steps to protect access to reproductive health care services and defend reproductive rights following the Supreme Court's decision to overturn Roe v. Wade. Here is an overview of the federal abortion guidance provided by the Biden administration:

Safeguarding Access to Reproductive Health Care Services

The Biden administration has directed the Secretary of Health and Human Services (HHS) to take several actions to protect access to reproductive health care services, including abortion and contraception. This includes ensuring access to medication abortion, emergency medical care, and contraception. The administration has also launched outreach and public education efforts to ensure Americans have accurate information about their rights and access to care.

Protecting Patient Privacy and Access to Accurate Information

The administration has taken steps to protect patient privacy, including addressing the transfer and sales of sensitive health-related data and combating digital surveillance related to reproductive health care services. They have also worked to protect people seeking reproductive health care from inaccurate information, fraudulent schemes, or deceptive practices.

Promoting Safety and Security

The Executive Order addresses the heightened risk related to seeking and providing reproductive health care and will ensure the safety of patients, providers, and clinics. This includes protecting mobile clinics that have been deployed to borders to offer care for out-of-state patients.

Coordinating Implementation Efforts

The administration has established an Interagency Task Force on Reproductive Health Care Access, led by HHS and the White House Gender Policy Council, to coordinate federal interagency policymaking and program development. The Attorney General will also provide technical assistance to states affording legal protection to out-of-state patients and providers offering legal reproductive health care.

Supporting Providers and Clinics

HHS has directed all its agencies to ensure that HHS-funded providers and clinics have appropriate training and resources to handle family planning needs. They have also announced funding to bolster training and technical assistance for the nationwide network of Title X family planning providers.

Promoting Access to Accurate Information

HHS has launched ReproductiveRights.gov, which provides timely and accurate information about reproductive rights and access to reproductive health care. This includes know-your-rights information for patients and providers and guidance on how to file a patient privacy or nondiscrimination complaint.

Providing Leave for Federal Workers Traveling for Medical Care

The Office of Personnel Management has issued guidance affirming that paid sick leave can be taken to cover absences for travel to obtain reproductive health care.

Protecting Access to Reproductive Health Care Services for Service Members, DoD Civilians, and Military Families

The Department of Defense (DoD) has issued a memo reiterating its commitment to providing seamless access to reproductive healthcare for military and civilian patients, as permitted by federal law. Military providers will continue to fulfill their duty to care for service members, military dependents, and civilian personnel who require pregnancy termination in cases of rape, incest, or to protect the life of the mother.

The Texas abortion law's enforcement

Texas's abortion laws are among the most restrictive in the United States. The state's abortion law prohibits physicians from performing abortions once a foetal heartbeat is detected, which is usually about six weeks into a pregnancy. This law, known as the Texas Heartbeat Bill, came into effect on 1 September 2021. The Texas abortion law makes it a second-degree felony to "perform, induce, or attempt an abortion", with the penalty increased to a first-degree felony if the foetus dies as a result. The law also allows for civil lawsuits against those who provide or aid in abortions, with a civil penalty of $10,000 for anyone performing an abortion after a foetal heartbeat is detected.

The Texas abortion law does not criminalise the woman who has the abortion but does create a criminal cause of action against the doctors and medical staff who perform it. 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 has been subject to various court rulings and legal challenges. For example, on 4 August 2023, a Texas judge granted a temporary injunction clarifying that abortions due to medical emergencies, including pregnancies that are unsafe for the mother, are permitted. On 31 May 2024, the Texas Supreme Court issued its ruling in Zurawski v. State, concluding that the plaintiffs had not shown that the Texas abortion law was unconstitutional.

In October 2024, the Supreme Court declined to intervene in an emergency abortion case in Texas, refusing to require doctors to perform certain emergency abortions when the procedure would conflict with the state's strict abortion ban. The Supreme Court's decision left in place a lower-court ruling that rejected the Biden administration's claim that federal law requires access to emergency abortion care, even in states with strict abortion restrictions.

In addition to the legal challenges, there have also been protests and demonstrations in support of abortion rights in Texas. For example, on 2 October, there was a protest in Austin, Texas, by abortion rights supporters.

The Texas abortion law's exceptions

The Texas abortion law criminalizes performing an abortion from the moment of fertilization unless the pregnant patient faces a "life-threatening physical condition aggravated by, caused by, or arising from a pregnancy." In such cases, only a licensed physician is permitted to perform the abortion.

The law also states that the physician must attempt to save the life of the fetus unless doing so would increase the risk of the pregnant patient's death or impairment. This exception only applies if 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 defined in the Texas Health and Safety Code, and attempts to clarify and codify these exceptions into law have been rejected by Republican lawmakers in Texas. This ambiguity has prompted expecting mothers with health complications to leave the state or give birth while jeopardizing their health.

In addition, there is no exception for pregnancies resulting from rape or incest under Texas abortion law.

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