Texas Abortion Ban: Understanding The Controversial Law

Abortion in Texas is illegal in most cases, with nominal exceptions for when the mother's life is at risk or to prevent substantial impairment of a major bodily function. The law came into effect on 25 August 2022, as a consequence of the U.S. Supreme Court's 2022 decision to overturn Roe v. Wade. The Texas Heartbeat Act (SB 8) bans abortion after the detection of embryonic or foetal cardiac activity, which typically occurs around six weeks into a pregnancy. The law does not make exceptions for pregnancies resulting from rape or incest.

The Texas Heartbeat Act (SB 8)

The act relies on enforcement by private individuals through civil lawsuits, thereby evading pre-enforcement challenges based on Roe v. Wade. The law makes exceptions for medical emergencies but does not provide a clear definition of "aids or abets", leaving this to the courts to decide.

Under the Texas Heartbeat Act, civil lawsuits can be filed against anyone who:

• Performs or induces an abortion in violation of the law;
• Knowingly "aids or abets" performing or inducing an abortion in violation of the law; or
• Intends to do either of the above actions.

The act specifies that these provisions apply only to abortions performed or induced after September 1, 2021.

The Texas Heartbeat Act has faced intense legal controversy, with several legal challenges filed in state and federal courts. Despite these challenges, the act remains in effect, and Texas abortion laws continue to be some of the most restrictive in the country.

Trigger laws

The Texas trigger law was passed in 2021 by the Texas Legislature and signed into law by Governor Greg Abbott. It was enacted in anticipation of the possibility that a conservative court might one day overturn Roe v. Wade.

The law states that abortion will be banned in Texas 30 days after the Supreme Court issues its formal judgment overturning Roe v. Wade. The Supreme Court did indeed overturn Roe v. Wade on June 24, 2022, and the Texas trigger law came into effect on August 25, 2022.

Under the Texas trigger law, performing an abortion is a felony. Doctors who perform abortions can face life in prison and fines of up to $100,000. However, the law does not allow for the prosecution of women who undergo abortions.

The law bans abortion in Texas unless the mother's life is in danger or there is a risk of "substantial impairment of a major bodily function". However, the law is written ambiguously, and it is unclear under what circumstances abortions are permitted. The law does not make any exceptions for pregnancies resulting from rape or incest.

In addition to the trigger law, Texas has also passed other legislation restricting abortion access, such as the Texas Heartbeat Act, which bans abortion after the detection of embryonic or fetal cardiac activity, usually around six weeks into a pregnancy.

Pre-viability gestational ban

The Texas Heartbeat Act, also known as Senate Bill 8 (SB 8), is a pre-viability gestational ban that prohibits abortion after the detection of embryonic or fetal cardiac activity. This typically occurs around six weeks into a pregnancy, which is before most women know they are pregnant. The bill was passed in May 2021 and went into effect on September 1, 2021.

The Act allows any person, except a state or local government employee or officer, to sue anyone involved in providing or facilitating an abortion after the detection of a fetal heartbeat. This includes third parties who aid or abet the performance of an abortion, such as paying for the procedure. The Act also authorises lawsuits against abortion providers, funders, employers, insurance companies, and anyone else who "aids or abets" an unlawful abortion by providing referrals, transportation, or logistical support. Those found in violation of the Act can be held liable for a minimum of $10,000 for each abortion performed or assisted, in addition to legal fees and costs.

The Texas Heartbeat Act has had a significant impact on abortion access and trends in the state. In the first month after its implementation, the number of abortions in Texas decreased by 50% compared to the previous year. Many pregnant Texans travelled out of state for abortion care, as neighbouring states had a limited number of facilities providing medication and procedural abortions. The Act has also led to an increase in abortions at 12 or more weeks of gestation, as individuals face challenges in accessing timely abortion care due to long wait times and limited facility capacity.

The pre-viability gestational ban in Texas is part of a broader trend in the United States, with nine states enacting similar laws in 2019. These laws have been criticised for harming pregnant people and their families, as well as violating reproductive freedom and autonomy. The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, has further contributed to the restriction of abortion rights and access across the country.

Parental consent requirement

Texas has a parental consent requirement for minors seeking abortions. A physician may not perform an abortion on a pregnant unemancipated minor unless:

• The physician gives at least 48 hours' actual notice, in person or by telephone, to a parent, court-appointed managing conservator, or guardian of their intent to perform the abortion.
• The physician receives a court order, known as a "judicial bypass", authorizing the minor to consent to the abortion without parental notification.
• The physician concludes that a medical emergency exists, certifies in writing to the Department of State Health Services, and provides the required notice.

The requirement for 48 hours' actual notice may be waived by an affidavit from a parent, court-appointed managing conservator, or guardian. A physician may also perform an abortion without parental consent if the minor is legally emancipated.

In the case of Whole Woman's Health v. Hellerstedt (2016), the Supreme Court struck down several of Texas's abortion laws, including the requirement for a minor to notify their parents or obtain a judicial bypass, due to the fact that they posed an "undue burden" to abortion access.

Targeted Regulation of Abortion Providers (TRAP) laws

Texas has a history of abortion laws that date back to 1854. In 1854, Texas passed a law that made performing an abortion a criminal offence, except in the case of preserving the life of the mother. The law was punishable by two to five years in prison.

In 2013, a state Targeted Regulation of Abortion Providers (TRAP) law was applied to medication-induced abortions and private doctor offices. TRAP laws are costly, severe, and medically unnecessary requirements imposed on abortion providers and women's health centres. They are often pushed by anti-abortion politicians under the guise of "women's health". The real aim of TRAP laws is to shut down abortion providers and make it more difficult for people to access abortion.

TRAP laws have had a devastating impact on access to safe and legal abortion in Texas. The landmark U.S. Supreme Court case, Whole Woman's Health v. Hellerstedt, centred on two TRAP law provisions: a mandate that all abortion providers comply with onerous and medically unnecessary building requirements for ambulatory surgical centres (ASCs), and an unfair, medically unnecessary requirement that doctors who provide abortions obtain hospital admitting privileges at a nearby hospital.

Abortion providers in Texas are already required to meet "'ambulatory surgical' standards", which cover a broad range of topics such as construction, plumbing, lighting, medical equipment, and staff qualifications. TRAP laws also often require that facilities maintain relationships with hospitals, which grants hospitals effective veto power over whether an abortion provider can exist. As a result of TRAP laws, the number of abortion providers in Texas has fallen sharply, and the number of women who live more than 100 miles from an abortion clinic in Texas has tripled.

In addition to TRAP laws, Texas has also passed other restrictive abortion laws, such as the Texas Heartbeat Act, which bans abortion after the detection of embryonic or fetal cardiac activity, and a trigger law, which went into effect on August 25, 2022, following the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overturning Roe v. Wade.

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