What is the Texas Heartbeat Act?

On September 1, 2021, a new abortion policy went into effect in the state of Texas. Under the Texas Heartbeat Act (S.B. 8), abortions are banned once a fetal heartbeat can be detected, which can be as early as six weeks into the first trimester--before most people are even aware they are pregnant. There are no exceptions for rape or incest. The bill effectively functions as a total ban on abortion, as the many restrictions and regulations that Texans must go through to obtain the procedure would be difficult to accomplish in such a short amount of time. These provisions counteract the landmark 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions, which together guaranteed the right to abortion before fetal viability. The Supreme Court refused to limit enforcement of the law, so it remained in effect for over a month until October 6th, when it was temporarily blocked by a federal judge. However, the bill was quickly reinstated on October 8th by a federal court of appeals. Although the back-and-forth makes the fate of this bill uncertain, its success at evading the judgement of the courts does not bode well for abortion rights in the United States. Other states, most recently Mississippi, have tried to implement similarly strict bans only to be immediately blocked by lower federal courts. So what makes this policy different from past attempts to limit reproductive rights? 

Constitutional Ambiguity

The answer lies in how the law is enforced. Rather than have the state government enforce the law, which would directly contradict Roe v. Wade, any private citizen can bring a civil lawsuit against an abortion provider or someone who has “aided or abetted” in an illegal abortion. Notably, the person receiving the abortion cannot be punished. This unique construction makes the bill extremely difficult to challenge in Court, as some might argue that since the state itself is not regulating the law, it remains Constitutional. Thus, while the bill is a blatant violation of Americans’ guaranteed freedoms, it is ambiguous in the eyes of the courts. This ambiguity lies in the fact that before the Supreme Court can decide if the bill is unconstitutional, it must first decide if it can be legally challenged. This makes the bill incredibly dangerous, not only for people seeking abortions, but for the future safeguarding of Constitutional rights. As Department of Justice officials argued in court, SB 8 contradicts the principle of national supremacy that has existed since the founding of the country. This is an alarming precedent to set, as it could be used by any state to undermine other constitutional rights such as freedom of speech, freedom of religion, and freedom from unreasonable searches and seizures. One of the most important foundations of the US government is state deference to the Constitution. If state policy can override federal policy, many Americans’ rights are no longer protected. 

Vigilantism

 The most questionable piece of the bill is the “vigilante” aspect of enforcement. The bill uses cash rewards to motivate individuals to monitor their fellow citizens for any indiscretion related to abortion. Legal experts and physicians have criticized the broad language of the bill, which allows anyone involved in the process, whether it is a family member, friend, Uber driver, or rape crisis counselor, to be implicated in a lawsuit. If the lawsuit is successful, the litigator will get their legal fees reimbursed and no less than $10,000 “for each abortion that the defendant performed or induced in violation [of the law]”; the defendant gets no compensation if they win. This gives individuals incentive to sue anyone they suspect of participating in an abortion, even those they have no personal connection with. It is even allowable for citizens of another state where the law doesn’t apply to sue someone who lives in Texas. Already, Oscar Stilley of Arkansas and Felipe Gomez of Illinois have filed a suit against abortion provider Alan Braid from San Antonio, Texas, after he confessed to purposefully disobeying the new law in a piece for the Washington Post. Neither of these men are from the state of Texas or have any connection to the defendant, and yet they have the power to punish him for disobeying a law that does not apply to them. The Texas Heartbeat Act is not federal law, but it has been given an unconstitutional level of national importance. In giving litigation power to anyone in the United States of America, the state of Texas shows a blatant disregard for the individual rights of its citizens.

Outcomes

Despite the fact that the bill has been temporarily blocked, this saga is far from over. If anything, the passage of this law is a further indication of both the Supreme Court’s willingness to support anti-choice legislation and certain state government’s desire to limit reproductive freedoms. Currently, the Court is set to try Mississippi’s abortion ban on December 1st in Dobbs v. Jackson Women’s Health Organization. Since the issue at hand is whether or not “all pre-viability prohibitions on elective abortions are unconstitutional,” this is a critical case that could result in the overturning of Roe v. Wade. If this happens, “trigger bans” that make abortion illegal will go into effect in 11 states, including Texas, and the legality of SB 8 will be unquestionable. What are the consequences? Even if abortion is banned, rates likely will not decrease. Abortion rates are very similar in countries where abortion is illegal versus legal. In fact, the issue is more intrinsically tied to poverty than legality, which means that those who will suffer under the bans are people without access to birth control, reproductive healthcare, and social services. This will largely affect teenagers, people of color, undocumented immigrants, and anyone with low income. These populations would likely be unable to work past the restrictions to receive care in time, or unable to afford the procedure since the bill does not allow the use of health insurance to cover costs. All of these limiting factors mean that those who are desperate will be forced to resort to more dangerous and unreliable methods to induce an abortion. This is already a difficult decision and government surveillance constitutes a danger beyond bodily harm: If they are caught, anyone who assisted them could face a lawsuit. Even if they are not caught, this fear of punishment and inability to access professional care puts their lives in danger. The best way to limit abortion is to provide sex education, birth control, and other resources so that people can avoid unwanted pregnancies. Policy that aims at banning abortion is ineffective at best, and harmful at worst. Ultimately, the Texas Heartbeat Act is yet another attempt to decrease access to comprehensive sexual and reproductive healthcare and obtain greater control over peoples’ bodies; this bill could have dire consequences for the future of individual rights in the United States.