Texas Abortion Law: Understanding The Current Legal Landscape

Abortion laws in Texas have undergone significant changes in recent years, with the state enacting some of the most restrictive legislation in the country. In 2021, Texas passed the Texas Heartbeat Act (SB 8), prohibiting abortions after the detection of embryonic or fetal cardiac activity, which typically occurs around six weeks into a pregnancy. This law took effect on August 25, 2022, following the U.S. Supreme Court's decision in Dobbs v. Jackson, which overturned Roe v. Wade and allowed states to create their own abortion laws. Under Texas law, abortions are now banned in most cases, with limited exceptions to protect the life or health of the pregnant patient. The legal landscape surrounding abortion in Texas remains contentious, with ongoing debates and legal challenges.

Exceptions to the law

Texas law prohibits abortions outright, except in certain circumstances. The law states that abortions are banned, but there are some exceptions.

The Texas abortion law makes it a criminal offense for a person to perform, induce, or attempt an abortion. However, there is an exception to this law if the life or health of the pregnant patient is at risk. In these cases, three factors must be met for the exception to apply:

• The abortion must be performed by a licensed physician.
• The patient must have a life-threatening condition and be at risk of death or "substantial impairment of a major bodily function" if the abortion is not performed. It is important to note that "substantial impairment of a major bodily function" is not defined in the law.
• The physician must try to save the life of the fetus unless doing so would increase the risk of the pregnant patient's death or impairment.

There are additional situations where the exception for the life or health of the patient does not apply, which are outlined in Section 170A.002 of the Texas Health & Safety Code.

Furthermore, Texas law provides exceptions for ectopic pregnancies and premature rupture of the amniotic membrane in a pre-viable embryo. In these cases, the defendant must prove that they exercised reasonable medical judgment in providing treatment for these complications.

While these exceptions exist, the law on abortion in Texas is ambiguous, and life-threatening or harmful pregnancies do not explicitly constitute an exception. This has led to confusion among doctors about how sick a woman must be before they can legally terminate a pregnancy.

The Texas Heartbeat Act

The Act does not criminalise abortion, but instead allows civil lawsuits to be brought against physicians who provide abortions in violation of the law. It also allows lawsuits against anyone who "aids and abets" an abortion in violation of the law. The minimum penalty for a successful lawsuit is $10,000, plus court costs and attorney's fees. The woman who receives an abortion cannot be sued.

The Act came into effect on 1 September 2021 and has been subject to several legal challenges, none of which have been successful to date. It is enforced exclusively through private civil actions, with no role for government officials. This has been described as a "clever" way of evading judicial review and shielding state officials from being sued for violating the constitution.

The Act has been criticised for undermining women's autonomy and their right to make decisions about their own health, as well as limiting access to safe and timely medical care. It has also been argued that the Act could lead to intimidation and the establishment of a vigilante system, as well as undermining medical expertise.

Penalties for aiding an abortion

Texas abortion laws are some of the most restrictive in the nation, with the state enacting a law in 2022 that prohibits almost all abortions. While the woman who has the abortion cannot be prosecuted, anyone who provided or aided in the abortion is open to criminal prosecution.

Texas abortion laws allow for criminal prosecution of anyone who aids an abortion or intends to aid an abortion. This includes:

• Medical personnel, including doctors and nurses
• A family member or friend who helps pay for the procedure
• A pharmacist who sells an abortion medication
• Anyone who hands a medication abortion pill to another person
• Anyone who drives the patient to a clinic or the place of the abortion

The penalties for aiding an abortion in Texas include:

• Criminal prosecution
• Civil lawsuits
• Fines of at least $100,000
• Revocation of a medical, nursing, or pharmacy license
• Prison time of five to 99 years or life imprisonment
• A $10,000 fine, or both

The Texas abortion law creates a criminal cause of action against doctors who perform abortions and allows for civil lawsuits against the same party. The law also provides for a civil penalty of at least $100,000, plus attorney's fees and court costs. In addition, a physician or health care professional in violation of the law will have their license or permit revoked.

The role of the Supreme Court

In June 2022, the Supreme Court's conservative majority overturned the landmark 1973 Roe v. Wade ruling, which had legalised abortion nationwide. This decision allowed states to set their own abortion laws, and Texas was one of the first to enact strict abortion bans. The Supreme Court's ruling sparked heated debates and legal challenges across the nation.

In July 2022, the Biden administration issued federal guidance reminding healthcare providers of their obligations under the 1986 Emergency Medical Treatment and Labor Act (EMTALA). This Act mandates that Medicare-participating hospitals offer emergency care to stabilise patients, regardless of their ability to pay. The Biden administration's guidance clarified that under EMTALA, physicians must provide abortions if necessary to resolve a medical emergency, even in states with strict abortion bans.

However, the state of Texas, along with two anti-abortion medical associations, sued the Biden administration, arguing that the guidance unlawfully compelled healthcare providers to perform abortions. In 2022, U.S. District Judge James Wesley Hendrix blocked enforcement of the guidance, finding that it was an unlawful interpretation of EMTALA and would allow abortions beyond what is permitted by Texas law. The 5th U.S. Circuit Court of Appeals upheld this decision in January 2023, ruling that EMTALA does not mandate any specific type of medical treatment, including abortion.

In a separate case in August 2023, a Texas judge granted a temporary injunction allowing abortions in certain medical emergencies, such as pregnancies unsafe for the mother. However, the Texas Supreme Court reviewed and rejected this decision, upholding the state's strict abortion ban. The Texas Attorney General argued that the high bar for qualifying for an abortion under Texas law is constitutional, while opponents claimed the law's vague language endangers women's lives.

The Supreme Court has also declined to intervene in Texas emergency abortion cases. In October 2024, the Court refused to require doctors in Texas to perform emergency abortions when the procedure would conflict with the state's abortion ban. This 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 restrictive abortion laws. The Supreme Court's refusal to intervene in Texas cases has been contrasted with its temporary clearance for doctors to perform emergency abortions in Idaho, leaving the future of emergency abortions in Texas uncertain.

The history of abortion laws in Texas

1854: The General Laws of Texas made it a criminal offence to attempt to "procure the miscarriage of any woman being with child."

1856: The Legislature formally codified the Penal Code, which contained provisions related to abortions that were slightly expanded from the 1854 Act.

1879: The abortion statutes were renumbered in the 1879 edition but remained substantively the same.

1895: The abortion statutes were again renumbered in the 1895 edition without any significant changes.

1907: A definition of "abortion" was added to the existing statutes.

1911: The abortion statutes were renumbered once more, with the addition of new language from 1907.

1925: The abortion statutes were reorganised and moved to the Revised Civil Statutes, as they could no longer be enforced due to the Roe v. Wade ruling.

1973: The US 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. The court ruled that states could only regulate abortion according to the stage of pregnancy, allowing some restrictions in the second trimester and a total ban in the third.

1977: Legislation was established to protect the right of medical personnel to refuse to participate in abortion procedures. Private hospitals or healthcare facilities were not legally obligated to perform abortions unless the mother's life was in danger.

1985: The Texas Abortion Facility Reporting and Licensing Act stipulated that all abortion facilities must report specific information about each patient in a yearly report.

1987: Third-trimester abortions were banned, closing a loophole left by the Roe v. Wade decision.

1999: Parental notification became a legal requirement for minors seeking abortions, with a "judicial bypass" option available.

2003: The "Woman's Right to Know Act" was passed. This law mandated that doctors provide misleading information about abortion procedures and alternatives to patients, who were then required to wait 24 hours before the procedure. It also stipulated that abortions at 16 weeks of gestation or later must be performed in an ambulatory surgical centre.

2005: Texas banned abortions after 24 weeks and enacted a requirement for parental consent for minors under 18 seeking an abortion.

2011: A mandatory sonogram law was enacted, requiring patients to undergo a sonogram at least 24 hours before the abortion procedure. Doctors were required to display the sonogram, make the fetal heartbeat audible, and verbally explain the results.

2013: House Bill 2, commonly known as HB2, was passed, imposing several additional restrictions on abortion, including admitting privilege requirements for doctors and banning abortions after 20 weeks post-fertilisation.

2015: The burden of proof for minors seeking judicial bypass was heightened, and their options for seeking bypass outside their home county were restricted.

2016: Texas's state health agency required clinics to pay extra for burial or cremation of tissue resulting from abortions, but this law was blocked by a court.

2017: Texas banned the safest and most common procedure for second-trimester abortions, and insurers were prohibited from including coverage for abortion in comprehensive health insurance plans.

2019: House Bill 16 criminalised abortion providers who do not provide medical treatment to a fetus born after an abortion, even though this situation is virtually impossible in Texas due to the 20-week abortion ban. Senate Bill 22 banned government affiliation with abortion providers or their affiliates, cutting off support to communities relying on low-cost clinics for basic healthcare.

2021: Senate Bill 8 banned abortion as early as six weeks into pregnancy and authorised private citizens to file civil lawsuits to enforce the ban.

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