Texas Abortion Law: Who Approved The Ban?

Texas' abortion law, also known as the Texas Heartbeat Act, prohibits physicians from performing abortions once a fetal heartbeat is detected, which is usually around six weeks into a pregnancy. The law was passed in May 2021 and went into effect on September 1, 2021, sparking heated debates and legal challenges across the nation. The law does not explicitly provide exceptions for pregnancies resulting from rape or incest and does not include life-threatening or harmful pregnancies as exceptions.

The Texas Heartbeat Act was strategically written to evade pre-enforcement challenges based on Roe v. Wade by relying solely on enforcement by private individuals through civil lawsuits. The law states that any person may sue anyone who performs, induces, or aids an abortion in violation of the statute. This includes abortion providers, funders, employers, insurance companies, and anyone who provides referrals, transportation, or logistical support.

The constitutionality of the Texas Heartbeat Act is a matter of intense legal controversy, with several legal challenges pending in state and federal courts. While the law does not create a criminal cause of action against the pregnant patient, it does open up doctors and medical staff to criminal prosecution and allows for civil lawsuits against them.

The Texas Heartbeat Act

The Act came into effect on September 1, 2021, and prohibits abortions once a 'fetal heartbeat' is detected, except in emergency situations. A fetal heartbeat is usually detected around six weeks into a pregnancy, and the Act requires physicians to test for a fetal heartbeat before performing or inducing an abortion. If they detect one or fail to test for one, they cannot proceed with the abortion.

The Act is enforced exclusively through private civil lawsuits, which can be brought by anyone other than an officer or employee of a state or local government entity. Lawsuits can be brought against anyone who "performs or induces an abortion" or "aids or abets the performance or inducement of an abortion" once a fetal heartbeat is detected. The woman seeking an abortion cannot be sued, but the Act's broad framing means that health professionals, reception staff, family members, friends, and even Uber drivers could potentially be impacted.

The Texas abortion law's criminal prosecutions

The Texas abortion law does not create a criminal cause of action against the mother or parent. However, it does create a criminal cause of action against doctors. Under the new Texas abortion law, the woman who had the abortion can't be prosecuted, but anyone who provided or aided in her abortion is open to criminal prosecution.

The Texas abortion law makes it a second-degree felony "for a person who knowingly performs, induces, or attempts an abortion". The penalty is increased to a first-degree felony if the unborn child dies due to the offense. Performing or aiding an abortion resulting in the unborn child's death is a first-degree felony punishable by five to 99 years in prison, according to Texas Government Code Sec. 170A.002.

In addition to criminal penalties, the law also allows for civil lawsuits against those who provide or aid in an abortion. The law creates a civil penalty of $10,000 for anyone performing an abortion after a fetal heartbeat is detected. There is no criminal penalty, but it allows any private citizen to sue for the $10,000, plus court costs and attorney fees.

The Texas abortion laws continue to be challenged and subject to various court rulings. For example, on August 4, 2023, a Texas judge granted a temporary injunction clarifying what abortions due to medical emergencies are, including pregnancies that are unsafe for the mother, among other things. The state will almost certainly appeal this decision.

Texas district attorneys can criminally prosecute abortions. However, other DA offices across the state, including in Dallas, Austin, and San Antonio, have publicly announced they would refrain from prosecuting.

The Texas abortion law's exceptions

The Texas abortion law, which prohibits almost all abortions, has some exceptions. Firstly, the law does not apply if the pregnant patient faces a life-threatening physical condition or a "substantial impairment of a major bodily function" if the abortion is not performed. However, the law is ambiguously worded, and attempts to clarify and codify these exceptions have been rejected by Republican lawmakers.

The law also does not apply if a licensed physician performs the abortion and tries to save the life of the fetus, unless doing so would increase the risk of the pregnant patient's death or impairment.

In addition, Texas Governor Greg Abbott signed HB 3058 into law in August 2023, allowing 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.

The Texas abortion law also does not criminalize the pregnant patient who undergoes an abortion.

The Texas abortion law's punishment

The Texas abortion law makes it a second-degree felony to "knowingly perform, induce, or attempt an abortion". If the unborn child dies due to the offence, the penalty is increased to a first-degree felony, punishable by five to 99 years in prison. The law also allows the Texas attorney general to seek a civil penalty of at least $100,000, plus attorney's fees and costs. Administrative penalties include the mandatory revocation of a medical, nursing, or pharmacy license.

The Texas abortion law does not create a criminal cause of action against the mother or parent. However, anyone who provided or aided in the abortion is open to criminal prosecution. This includes medical personnel, family members or friends who help pay for the procedure, and pharmacists who sell abortion medication.

In addition to criminal penalties, several sections of Texas law allow abortion providers or those assisting with an abortion to be sued or fined. For example, Section 171.006 of the Texas Health and Safety Code allows the Attorney General to impose a civil fine on doctors who fail to report abortion complications as required. Section 171.208 of the same code allows a third party to bring a lawsuit against anyone who performed, aided, or abetted an abortion.

The Texas abortion law is written ambiguously, and attempts to clarify and codify exceptions into law 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 jeopardizing their health.

The Texas abortion law is not enforced by the government. Instead, enforcement is left entirely in the hands of private litigants who sue those who violate the statute. This was a legal maneuver by the law's authors to help it withstand any court challenges to its constitutionality.

The Texas abortion law's enforcement

The enforcement of Texas's abortion laws has been a complex and highly contested issue, with various legal challenges and rulings shaping the landscape of abortion access in the state. Here is an overview of the enforcement mechanisms and key developments:

The Texas Heartbeat Act (SB 8)

The Texas Heartbeat Act, passed in May 2021, bans abortion after the detection of embryonic or fetal cardiac activity, which typically occurs around six weeks into a pregnancy. This Act is notable for its enforcement mechanism, which relies solely on private individuals bringing civil lawsuits against those who provide or aid abortion services. This strategy was designed to evade pre-enforcement challenges based on Roe v. Wade. The Act allows any individual, except state or local government employees, to sue anyone involved in providing or facilitating an abortion after the detection of a fetal heartbeat. This has raised concerns about the intimidation of individuals who support women seeking abortions.

Criminal Prosecution of Abortion Providers

Texas abortion laws criminalize the act of performing an abortion and impose harsh penalties on providers. It is a second-degree felony for a person to "knowingly perform, induce, or attempt an abortion," with the penalty increasing to a first-degree felony if the unborn child dies. This can result in a prison sentence of up to 99 years. Additionally, administrative penalties include the mandatory revocation of medical, nursing, or pharmacy licenses. The Texas Attorney General can also seek civil penalties of at least $100,000, along with attorney's fees and costs.

Civil Penalties and Lawsuits

The Texas abortion laws also impose civil penalties on individuals or entities that aid or abet an abortion. The "Heartbeat Law" allows any private citizen to sue for a $10,000 penalty, plus court costs and attorney fees. This has led to concerns about a "bounty-hunter-style" system that encourages individuals to bring lawsuits against abortion providers and their supporters.

Exceptions and Medical Emergencies

The abortion laws in Texas criminalize the procedure from the moment of fertilization unless the pregnant patient faces "a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy." However, there has been confusion and legal challenges regarding the specific exceptions allowed under the law. In August 2023, a Texas judge granted a temporary injunction clarifying that abortions due to medical emergencies, including pregnancies unsafe for the mother, are permitted. Additionally, in September 2023, an affirmative defense was created for doctors performing abortions in cases of ectopic pregnancies or premature rupture of the amniotic membrane.

Role of Texas Supreme Court

The Texas Supreme Court has played a significant role in interpreting and upholding the state's abortion laws. In May 2024, the court ruled against an injunction that allowed Texans with complicated pregnancies to obtain abortions if their doctor believed it was necessary. The court sided with the Attorney General's argument that the high bar for qualifying for an abortion is constitutional. However, critics argue that the law's vague language puts doctors in a difficult position and endangers women's lives.

City-Level Deprioritization of Enforcement

It is important to note that several cities in Texas, including Austin, Dallas, Denton, El Paso, and Houston, have enacted resolutions instructing city officials to deprioritize the enforcement of the state's abortion laws. However, abortion remains a criminal offense under state law, and individuals violating the abortion laws in these cities are still subject to criminal prosecution and civil penalties.

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