Texas Abortion Law: When Did It Begin?

Texas' abortion law, also known as the Texas Heartbeat Act, came into effect on August 25, 2022, as a consequence of the U.S. Supreme Court's 2022 decision to overturn Roe v. Wade. The law prohibits abortions after the detection of embryonic or foetal cardiac activity, which typically occurs around six weeks into a pregnancy, often before women know they are pregnant. The law makes no exception for pregnancies resulting from rape or incest and criminalises anyone who performs or aids an abortion.

The Texas Heartbeat Act

The Act is enforced exclusively by the actions of private citizens bringing civil lawsuits rather than being directly enforced by the State. This means any person, other than an officer or employee of a state or local government entity, can bring a case against any person who "performs or induces an abortion" or any person who "aids or abets the performance or inducement of an abortion" once a 'fetal heartbeat' is detected. While the woman seeking an abortion cannot be sued, the Act's framing is so broad that it could potentially impact health professionals, reception staff at a healthcare clinic, family members and friends who counsel the woman, and even Uber drivers who transport women to abortion clinics.

The Act does not make performing or inducing an abortion a crime. Instead, it allows civil lawsuits against a physician who provides or induces such an abortion. Section 171.208 of the Texas Health and Safety Code allows private citizens to sue anyone who performs or induces an abortion in violation of the law and anyone who "aids and abets" an abortion in violation of the law. If the lawsuit is successful, the court will award injunctive relief, an amount of not less than $10,000, and court costs and attorney's fees to the person who files the lawsuit.

The Texas trigger law

Texas's "trigger law" on abortion is a piece of legislation that was passed in 2021 but only came into effect following a "trigger event". In this case, the trigger event was the U.S. Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade. The Texas law came into effect 30 days after this decision, on 25 August 2022.

The law prohibits almost all abortions in the state and sets out civil, criminal, and professional penalties for abortion providers who violate the law. Doctors who perform abortions can face criminal prosecution and fines. The law does not make exceptions for pregnancies resulting from rape or incest.

The Texas Heartbeat Act, passed in May 2021, bans abortions after the detection of embryonic or fetal cardiac activity, which usually occurs around six weeks into a pregnancy. This law relies on private individuals to enforce it through civil lawsuits.

In August 2023, Texas Governor Greg Abbott signed a bill into law that allows doctors to provide abortions in the case of an ectopic pregnancy or if a pregnant patient's water breaks too early, rendering the fetus unviable. However, abortion in Texas remains illegal in most cases.

The Texas abortion EMTALA case

The Texas abortion law prohibits physicians from performing abortions once a fetal heartbeat is detected. The Texas Heartbeat Bill became state law with a trigger in place that subjected it to a Supreme Court ruling which has now effectively enabled it. This legislation went into effect on September 1, 2021, sparking heated debates and legal challenges throughout the nation.

The Biden administration has argued that a 1986 law, EMTALA, which requires most hospitals to provide emergency care, applies to abortion even in states with bans. Texas, however, disagrees. The state's abortion ban has limited exceptions for patients who have a life-threatening condition or who are at risk of "substantial impairment of a major bodily function", but what constitutes substantial impairment is left undefined.

The Supreme Court's decision to not hear an appeal at this juncture means that a lower court order will remain in place, stating that hospitals cannot be required to provide emergency abortions in cases when they might violate Texas' ban. Legal experts noted that the order could also affect cases in Louisiana and Mississippi, which are also under the jurisdiction of the 5th U.S. Circuit Court of Appeals.

The Supreme Court's rejection of the Biden administration's appeal in the Texas emergency abortion case has been interpreted as a signal of how the next president could impact abortion access without the need for federal legislation. The decision came as early voting was already underway in some states in the first presidential election since the Supreme Court overturned Roe v. Wade, ending federal abortion protections and sending the issue back to the states.

The flat rejection of the Texas case by the Supreme Court has raised questions and provided insight into how the critical question of abortion access may ultimately be decided. Experts have noted that the conservative bloc of justices may be fine with letting Texas continue enforcing its law in the meantime, especially if the issue goes away with a Trump victory in the upcoming election.

The silence from liberal justices in the rejection of the Texas case has also been noted, with possible explanations including a lack of support for the Solicitor General's plan or a strategic hold-off on granting cert until the Idaho case, which the Court has already intervened in, makes its way back to the Court.

The Texas abortion law's impact on infant deaths

Texas's abortion laws have had a significant impact on infant deaths in the state. The state's abortion ban, which came into effect on August 25, 2022, prohibits abortions after the detection of embryonic or fetal cardiac activity, usually occurring around six weeks into a pregnancy. This ban has been linked to a rise in infant deaths, with a study by Johns Hopkins Bloomberg School of Public Health researchers estimating a 12.9% increase in infant deaths in Texas from 2021 to 2022, compared to a 1.8% increase in the rest of the United States. The study also found a 23% increase in infant deaths due to congenital anomalies, which are often identified in utero and can be incompatible with life.

The impact of the abortion ban on infant deaths is further highlighted by the fact that Texas recorded the highest number of legal induced abortions in the country in 2000, 2001, and 2003. Additionally, the state's infant mortality rate in 2017 was 5.9 deaths per 1,000 live births. While there are various factors contributing to infant deaths, the abortion ban has been a significant factor, especially for infants with congenital anomalies.

The abortion ban in Texas has had a direct impact on the number of infants who die within the first year of their life. The study by Johns Hopkins Bloomberg School of Public Health researchers estimated that there were 216 excess infant deaths in Texas between March and December 2022, which would likely not have occurred if the state's abortion law had not been in place. This corresponds to a 12.7% increase in infant deaths during that period. The researchers also found a similar pattern in neonatal deaths, with an estimated 145 excess deaths.

The impact of the abortion ban on infant deaths is not limited to Texas. With the US Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overturning Roe v. Wade, more states have enacted stricter abortion laws. As a result, researchers expect to see similar increases in infant deaths in other states with restrictive abortion policies. The study by Johns Hopkins Bloomberg School of Public Health is among the first to examine the impact of abortion bans on infant deaths and provides valuable insights into the potential consequences of restrictive abortion policies on infant health and families.

The abortion ban in Texas has not only led to an increase in infant deaths but has also had other significant impacts. The ban has forced expecting mothers with health complications to leave the state or give birth while jeopardizing their health. Additionally, there has been a rise in teen births, with an 84% increase among Latina teens, and an estimated 26,313 rape-related pregnancies in the 16 months after the abortion ban. The abortion ban has also had economic impacts, with women needing to travel greater distances to access abortion services and facing higher costs.

The Texas abortion law's exceptions

The Texas abortion law, which came into effect on 25 August 2022, prohibits physicians from performing abortions once a foetal heartbeat is detected, which is usually around six weeks into a pregnancy. The law makes no exception for pregnancies resulting from rape or incest.

However, there are limited exceptions to the law to save the mother's life or prevent "substantial impairment of a major bodily function". In August 2023, Texas Governor Greg Abbott signed HB 3058 into law, allowing doctors to provide abortions in the case of an ectopic pregnancy or if a pregnant patient's water breaks too early, rendering the foetus unviable.

Despite these exceptions, the law is written ambiguously, and attempts to clarify and codify them have been rejected by Republican lawmakers in Texas. This has resulted in expecting mothers with health complications leaving the state or being forced to give birth while jeopardising their health.

In December 2023, the Texas Supreme Court ruled that a pregnant woman whose foetus was diagnosed with a fatal condition and whose pregnancy posed a threat to her health could not be permitted to receive an abortion. The court recognised that only a doctor could decide whether a pregnant woman had a life-threatening physical condition that made an abortion necessary to save her life or prevent serious risk of substantial impairment of a major bodily function.

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. However, critics argue that it falls short of providing clear exceptions and does not adequately protect life-saving care for pregnant mothers.

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