Texas Abortion Law: What's Next?

Texas has some of the most restrictive abortion laws in the US. Abortion is banned in Texas at all stages of pregnancy, with limited exceptions. The state's abortion laws do not provide for cases of rape, incest, or fetal anomaly diagnoses. The Texas Heartbeat Act, also known as Senate Bill 8, prohibits physicians from performing or inducing an abortion after a fetal heartbeat is detected, which is usually around six weeks into a pregnancy. The law also allows private citizens to sue anyone who performs or induces an abortion or aids and abets an abortion in violation of the law. With these restrictive laws in place, what can be done to protect abortion rights in Texas?

The Texas Heartbeat Act

The Act does not criminalise the act of performing or inducing an abortion. Instead, it allows civil lawsuits to be brought against physicians who provide or induce abortions after a fetal heartbeat is detected. The law also allows lawsuits against anyone who "aids and abets" an abortion in violation of the law. This could potentially include health professionals, reception staff, family members, friends, and even Uber drivers who drive women to abortion clinics.

The woman receiving the abortion is exempt from being sued by private citizens. However, any person who performs or induces an illegal abortion, or knowingly aids an illegal abortion, can be sued. If a lawsuit is successful, the court will award injunctive relief, a minimum of $10,000, and cover court costs and attorney's fees.

The Act has been subject to several legal challenges, but none have been successful to date.

Senate Bill 8

The Act authorises members of the public to sue anyone who performs or facilitates an illegal abortion for a minimum of $10,000 in statutory damages per abortion, plus court costs and attorney's fees. The Act also specifies that the sole means of enforcement will be through civil-enforcement lawsuits brought by private individuals. This means that state officials are prohibited from enforcing the law.

The Act also includes provisions that further restrict abortion and deter litigants from challenging abortion laws in court. Section 2 of the Act declares that Texas has never repealed its pre-Roe v. Wade statutes that outlaw and criminalise abortion unless the mother's life is in danger. Section 3 requires physicians to test for a "fetal heartbeat" before performing an abortion and prohibits abortion if a "fetal heartbeat" is detected. Section 4 requires litigants who challenge the constitutionality of any Texas abortion restriction to pay the attorney's fees of "prevailing parties" if their challenge is unsuccessful.

The Texas Heartbeat Act is intensely controversial because it was written to frustrate judicial review and thwart the judiciary from enforcing Supreme Court precedents that declared abortion to be a constitutionally protected right.

House Bill 1280

Violation of the prohibition is a second-degree felony, which becomes a first-degree felony if the foetus dies as a result. Each violation carries a civil penalty of at least $100,000, and the relevant licensing authority must revoke the licence of any physician who performs an illegal abortion. Importantly, the law does not impose criminal or civil penalties on a pregnant person who receives an abortion.

The bill was authored by Rep. Giovanni Capriglione and received support from numerous pro-life groups and organisations, including the Texas Catholic Conference of Bishops, Texans for Life, Students for Life of America, and the State Republican Executive Committee. The Senate also passed an identical bill, SB 9, sponsored by Sen. Angela Paxton.

Roe v. Wade

The case was brought by Norma McCorvey, under the legal pseudonym "Jane Roe", who, in 1969, became pregnant with her third child. McCorvey wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother's life. Her lawyers, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. A special three-judge court of the U.S. District Court for the Northern District of Texas heard the case and ruled in her favour. The parties appealed this ruling to the Supreme Court. In January 1973, the Supreme Court issued a 7–2 decision in McCorvey's favour, holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion.

The Supreme Court's decision in Roe was among the most controversial in U.S. history. In addition to the dissent, Roe was criticised by some in the legal community, including some who thought that Roe reached the correct result but went about it the wrong way, and some called the decision a form of judicial activism. Others argued that Roe did not go far enough, as it was placed within the framework of civil rights rather than the broader human rights. The decision also radically reconfigured the voting coalitions of the Republican and Democratic parties in the following decades. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision; polls into the 21st century showed that a plurality and a majority, especially into the late 2010s to early 2020s, opposed overruling Roe. Despite criticism of the decision, the Supreme Court reaffirmed Roe's central holding in its 1992 decision, Planned Parenthood v. Casey. Casey overruled Roe's trimester framework and abandoned its "strict scrutiny" standard in favour of an "undue burden" test.

In June 2022, the Supreme Court overruled Roe and Casey in Dobbs v. Jackson Women's Health Organization on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition", nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law until Roe.

Dobbs v. Jackson Women's Health Organization

Dobbs v. Jackson Women’s Health Organization was a landmark decision by the Supreme Court that addressed whether the Constitution protects the right to an abortion. The case reviewed the constitutionality of Mississippi’s Gestational Age Act, a law banning most abortions after 15 weeks of pregnancy with exceptions for medical emergencies and fetal abnormalities.

In a divided opinion, the Court upheld the Mississippi law and overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The Court concluded that the Constitution does not protect the right to an abortion and that the issue of abortion regulation should be returned to the elected branches.

The Court's decision was based on the argument that the Constitution makes no reference to abortion and that any right to abortion is not implicitly protected by any constitutional provision. The Court also highlighted that until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.

The ruling in Dobbs v. Jackson Women’s Health Organization has had significant implications for abortion laws across the country, including in Texas. Texas now has one of the strictest abortion laws in the nation, with a pair of laws that together ban abortion at all stages of pregnancy, without exceptions for rape or incest.

The first law, Senate Bill 8 (SB 8), took effect on September 1, 2021, and outlaws abortion around six weeks of gestation, even in cases of rape and incest. The second law, House Bill 1280 (HB 1280), is a so-called "Trigger Ban" that creates harsh criminal penalties for doctors and providers who perform or aid abortions at all stages of pregnancy, without exception for rape or incest.

As a result of these laws, abortion is illegal in Texas unless an examining physician determines that the pregnant person's life is in danger. Texans seeking abortions must now travel out of state to obtain them, and there is support available to help them do so.

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