Gov. Greg Abbott signed into law Wednesday, May 19, 2021, legislation that prohibits abortion once a fetal heartbeat is detected, effectively banning most abortions in the state.
The restriction puts Texas at the vanguard among states challenging the boundaries of Roe v. Wade, the 1973 landmark Supreme Court case that established a woman’s legal right to an abortion.
The measure, a priority for Republican lawmakers during this year’s legislative session, would allow virtually any private citizen to sue an abortion provider or others who “aid and abet” an abortion in violation of the new ban.
The bill passed easily through both the Senate and House, despite fervent opposition from Democrats. Abbott indicated support of the measure early in session and made good on his pledge to sign it on Wednesday, at a ceremony that was closed to members of the press.
“Our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion,” Abbott said during a live video of the ceremony shared to Facebook. “In Texas, we work to save those lives and that’s exactly what the Texas Legislature did this session.”
Abortion law effective Sept. 1
The new law is slated to go into effect on Sept. 1. At that point, abortions will only be allowed in Texas prior to the presence of a fetal heartbeat, baring a medical emergency.
There is not a specific timeframe tied to the restriction, and fetal heartbeats can be detected as early as six weeks gestation — or six weeks from a woman’s last menstrual period, not since the start of her pregnancy — according to the American Congress of Obstetricians and Gynecologists.
Opponents of the law argue that it will prohibit abortions before most women are even aware they are pregnant, effectively outlawing the procedure. It also does not include exceptions in cases of rape or incest, a caveat that has long been the standard in abortion laws.
The proposal was part of an aggressive agenda from abortion opponents during this year’s legislative session, which included numerous proposals designed to severely limit the availability of the procedure, with an eye to the changing power dynamics at the Supreme Court. Conservatives now hold a 6-3 majority.
Legal challenge
Federal judges have blocked similar laws in other states, but proponents of the legislation in Texas are hopeful that by prohibiting public officials from enforcing the law and leaving it up to private citizens to sue violators, the law can pass legal muster.
This provision of the law has drawn intense criticism from lawyers, 400 of whom wrote a letter to lawmakers warning that the language used in the legislation is “exceptionally broad” and would create an “unprecedented” cause of action that “subverts the foundations of our judicial system.”
Plus, legal experts have said that prohibiting enforcement of the ban by public officials will not protect the law from legal challenges.
Elizabeth Sepper, a law professor at the University of Texas, told the American-Statesman in March that it is “unlikely that a federal court is going to fall for this” strategy employed in the legislation.
“You can’t attempt to strip constitutional rights by requiring someone to go into state court when they face a lawsuit from another private citizen,” she said. “Federal courts would immediately say, ‘Hey, wait a second: You can’t cut off the U.S. Constitution by framing what’s really a state law as a private matter between citizens.’”
Elizabeth Nash, principal policy associate at the Guttmacher Institute, said the civil action created through the law is “uniquely cruel.”
“By allowing anyone, anywhere to sue people involved in providing or obtaining an abortion, this ban would open the floodgates for frivolous lawsuits, bury clinics under court cases and legal fees, and make it difficult for providers to remain open,” Nash said in a statement. “This ban in Texas is clearly about controlling pregnant people’s bodies and preventing them from making decisions about their lives and futures.”
Lawmakers tweaked one element of the proposal before sending it to Abbott for approval and opted to explicitly limit the civil action created through the law to violations of the ban on abortions once a fetal heartbeat can be detected. Opponents argued that the original version of the legislation could have allowed for lawsuits to be filed against abortion providers and others for violations of any abortion-related regulation.
Lawmakers also added language to prohibit a person who impregnated a woman through rape, sexual assault, or incest from bringing a lawsuit under the bill.
