Texas Heartbeat Act

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Texas Heartbeat Act
Seal of Texas.svg
Texas Legislature
Long title
  • An Act relating to abortion, including abortions after detection of an unborn child's heartbeat; authorizing a private civil right of action.
EnactedMay 19, 2021 (2021-05-19)
CommencedSeptember 1, 2021 (2021-09-01)
Bill citationFull Text of SB 8 with signatures of:
Introduced byBryan Hughes
Status: In force

The Texas Heartbeat Act is an act of the Texas Legislature that bans abortion after the detection of embryonic or fetal cardiac activity, which normally occurs after about six weeks of pregnancy. It was introduced as Senate Bill 8 (SB 8) and House Bill 1515 (HB 1515) on March 11, 2021, and was signed into law by Governor Greg Abbott on May 19, 2021. The law took effect on September 1, 2021, after the Supreme Court denied a request for emergency relief from Texas abortion providers.[1] It is the first time a state has successfully imposed a six-week abortion ban since Roe v. Wade, and the first abortion restriction to rely solely on enforcement by private individuals through civil lawsuits, rather than having state officials enforce the law with criminal or civil penalties. The act authorizes 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 attorneys’ fees.[2][3][4]

The Texas Heartbeat Act has been subjected to numerous pre-enforcement lawsuits in state and federal court, but the statute has thus far withstood these court challenges and remains in effect. Lawsuits challenging the constitutionality of the Act have been filed by abortion providers and advocates,[5] as well as the United States Department of Justice,[6][7] but none of these lawsuits have been able to restore access to post-heartbeat abortions in Texas. The law has been difficult to challenge in court because of its enforcement mechanism, which bars state officials from enforcing the law and instead authorizes private individuals to sue anyone who performs or assists a post-heartbeat abortion.[8][9] Because the law is enforced by private citizens rather than government officials, abortion providers have been unable to obtain relief that will stop private lawsuits from being initiated against them.[10] This has effectively produced an end-run around Roe v. Wade, which established a federal constitutional right to abortion, because the threat of private civil-enforcement lawsuits has forced abortion providers to comply with SB 8 despite its incompatibility with the Supreme Court's abortion pronouncements.[11][12]

Even when courts have declared SB 8 unconstitutional, abortion providers have remained in compliance with the Act because it purports to subject individuals to private civil-enforcement lawsuits if they perform or assist a post-heartbeat abortion while an injunction that blocks the law's enforcement is in effect, if that injunction is later vacated or reversed on appeal.[13][14][15] On October 6, 2021, Federal District Judge Robert L. Pitman issued a preliminary injunction that blocked the state of Texas from enforcing the law,[16] which remained in effect until the U.S. Court of Appeals for the Fifth Circuit issued a stay of Pitman's order two days later.[17] Yet Pitman's order was unable to fully restore access to post-heartbeat abortions in Texas, even during the 48-hour window in which it was in effect, because abortion providers were unwilling to risk the civil liability that would be imposed if Pitman's injunction were stayed or overturned by a higher court.[14][18] The U.S. Supreme Court declined to overturn the Fifth Circuit's stay of Pitman's ruling,[19][20] so any post-heartbeat abortions performed in reliance on Pitman's injunction are subject to private civil-enforcement lawsuits under the terms of SB 8.[13] This has made it difficult for abortion providers to resume services even when they obtain relief from a lower court that pronounces the statute unconstitutional, and it has further frustrated efforts to thwart the statute's enforcement in court.

In December 2021, the Supreme Court dismissed a writ of certiorari in the federal government's lawsuit over SB 8,[20] as well as claims that Texas abortion providers had brought against a state-court judge, a court clerk, the state's attorney general, and a private citizen.[10] The Court did, however, allow the abortion providers' claims against state licensing officials to proceed beyond the motion-to-dismiss stage, and remanded the case back to the Fifth Circuit.[10] On remand to the 5th Circuit, a question of Texas state law concerning the state licensing officials' ability to enforce the law was certified to the Supreme Court of Texas, leaving the law in effect in the meanwhile.[21] Abortion providers and funders are also challenging the constitutionality of the act in state court.[22] On December 9, 2021, a state district judge ruled that portions of the statute's enforcement mechanism violate the Texas Constitution, but he did not enjoin the law's enforcement.[15] That ruling is currently on appeal.

Background[]

A different fetal-heartbeat bill, HB 59, was previously introduced in Texas by Phil King on July 18, 2013, in the wake of Rick Perry signing Texas Senate Bill 5 into law.[23] The bill did not pass.[24][25] In 2019, another fetal-heartbeat bill was introduced as HB 1500, which was jointly authored by Representatives Briscoe Cain, Phil King, Dan Flynn, Tan Parker, and Rick Miller.[26] As of February 26, 2019, HB 1500 had 57 sponsors or cosponsors of the 150 members of the Texas House of Representatives.[27] HB 1500, like HB 59, relied on conventional public enforcement by state officials, similar to heartbeat laws that had been enacted in other states.[28] HB 1500 did not pass.[29]

On March 11, 2021, the Texas Heartbeat Bill (Senate Bill 8 or SB 8 for short) was introduced by Senator Bryan Hughes.[30][31] A companion bill (HB 1515) was filed by Representative Shelby Slawson a day later in the Texas House of Representatives.[32] Unlike HB 1500, SB 8 and HB 1515 contained an enforcement mechanism designed to shield the law from pre-enforcement judicial review. Each of the bills explicitly forbade state officials to enforce the law in any way, and instead authorized private individuals to sue those who perform or assist post-heartbeat abortions for $10,000 per abortion, plus costs and attorneys’ fees. In structuring the law this way, the authors sought to shield it from pre-enforcement review in federal court, because lawsuits challenging the constitutionality of a state statute must be brought against state officials charged with enforcing the disputed law, rather than against the state itself.[33] And without a state official who enforces the law, there is no one for abortion providers to sue pre-enforcement; they must instead wait to be sued by a private individual and assert their constitutional claims as a defense to liability in those private civil-enforcement proceedings.[34]

The private civil-enforcement feature of the law was advocated by former Stanford law professor Jonathan F. Mitchell.[11][35] He proposed the idea in a 2018 Virginia Law Review article, The Writ-of-Erasure Fallacy,[36][37] citing the civil enforcement provision of the Partial-Birth Abortion Ban Act of 2003 as an example.[38] He observed that courts which had temporarily blocked the criminal enforcement provision of the Act never struck down the civil enforcement provision, because that was not within their authority.[38] He later brought it to the attention to Mark Lee Dickson, an East Texas anti-abortion pastor, in 2019.[11][39][40] Dickson was able to persuade the city council of Waskom, Texas, to enact an ordinance that outlawed abortion within city limits through the private civil-enforcement mechanism proposed by Mitchell, although it was mostly a symbolic move as the town had no abortion providers.[41] Dickson then championed for similar laws to be passed in other towns and cities in Texas over the following years, including Lubbock, where a Planned Parenthood facility halted abortion procedures following passage of the local law.[39][42] Mitchell helped Hughes draft the bill for the state based on the municipal ordinances he had written as a means of avoiding pre-enforcement judicial scrutiny, primarily by taking state officials out of enforcing the abortion ban and leaving enforcement entirely in the hands of private individuals.[39][43]

The Heartbeat Bill was a legislative priority of Republican lawmakers for the 2021 regular session, denoted 87(R).[44] Republicans held majorities in both houses. It was included on Lieutenant Governor Dan Patrick's list of top priorities for the 2021 legislative session.[45] The Senate version was approved by both houses of the bicameral Texas legislature after the Senate concurred with House amendments.[46] Texas governor Greg Abbott signed the new legislation into law on May 19, 2021.[47]

Another related act, the Human Life Protection Act (House Bill 1280), was passed later that year. That law prospectively bans all abortions in Texas, except to save the life of the mother, if Roe v. Wade is overturned by the Supreme Court.[48]

Provisions[]

The Texas Heartbeat Act contains twelve sections.[49] Although the Act is best known for its provisions that outlaw abortion after fetal heartbeat and authorize private lawsuits against those who violate the Act, the Act includes other provisions that further restrict abortion and deter litigants from challenging abortion laws in court. It is regarded as one of the most aggressive and far-reaching pieces of anti-abortion legislation that has ever been enacted.[50]

Section 2 of the Act declares that Texas has never repealed, either expressly or by implication, its pre–Roe v. Wade statutes that outlaw and criminalize abortion unless the mother’s life is in danger.[51] This provision overrules McCorvey v. Hill, a 2004 decision from the U.S. Court of Appeals for the Fifth Circuit, which held that Texas had implicitly repealed its pre-Roe criminal abortion statutes by enacting subsequent legislation that regulates the abortion procedure. It also ensures that all abortions performed in Texas—including abortions that occur before a fetal heartbeat is detectable—are defined as criminal acts under Texas law. The Texas pre-Roe abortion statutes impose felony criminal liability on anyone who performs an elective abortion, as well as on anyone who “furnishes the means for procuring an abortion knowing the purpose intended.”[52] The punishment is two to five years’ imprisonment for each abortion performed or facilitated, and the statute of limitations is three years.

Section 3 of the Act allows any person to sue someone who performs or induces an abortion, or aids and abets one, once "cardiac activity" in an embryo can be detected via transvaginal ultrasound, which is usually possible beginning at around six weeks of pregnancy.[53][54][55][a]

The act defines an "unborn child" as a human fetus or embryo at any stage of gestation.[56]

Although an abortion patient may not be named as a defendant, anybody who provides support for an unlawful abortion can be sued in addition to the physician performing the procedure. That includes staff members at clinics, counselors, lawyers, financiers, and those who provide transportation to an abortion clinic, including drivers of a taxi or ride-hailing companies.[3] The act incentivizes private enforcement by authorizing "statutory damages" of at least $10,000 in addition to court costs and attorney's fees if a defendant is proven liable.[53] Plaintiffs are not required to have a personal connection to the patient or abortion provider in order to bring a lawsuit under SB 8.[57]

Section 3 of the Act also insulates Texas state officials from being the target of lawsuits related to the act, effectively claiming they have sovereign immunity since the law only enables civil lawsuits by private individuals.[58] The act also sets language that requires defendants in these civil suits to prove they did not break the law, rather than typical legal practice where plaintiffs are required to show how the defendants broke the law. Further, the act attempts to make the proof of the undue burden standard related to abortion access from Roe v. Wade and Planned Parenthood v. Casey more difficult for defendants by requiring judges to consider more stringent proof of this standard.[58]

Section 4 of the Act requires litigants who challenge the constitutionality of any Texas abortion restriction to pay the attorneys’ fees of "prevailing parties" if their challenge is unsuccessful.[59] Section 4 also imposes joint and several liability on the attorneys and law firms that sue to enjoin the enforcement of any Texas abortion law.[60]

At midnight, immediately after the law went into effect, many clinics in Texas including Planned Parenthood stopped performing abortion procedures and stopped taking new appointments.[61] However, many clinics reported an increase in patients at their clinics who had completed the 24-hour waiting period and sought to have the procedure done before the midnight deadline.[62]

The act contains exceptions in the case of medical emergency, such as if the mother is at risk of death or severe irreversible bodily harm. It makes no exceptions for rape or incest.[63] Because enforcement of the law relies upon civil reporting, there are provisions that state no "perpetrator of an act of rape, sexual assault, incest, or any other act prohibited by Sections 22.011, 22.021, or 25.02, Penal Code" may be involved in the reporting process.[64] On September 7, 2021, Governor Abbott asserted that the Act does not force raped women to carry pregnancies to term because the state would "work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets."[65]

Significance[]

The act is the first time since Roe v. Wade that a state has successfully outlawed abortion as early as six weeks into a pregnancy, even for a brief period of time.[3] In Texas, an estimated 85% of abortions have been performed after the six-week mark, which is often shortly after a pregnant woman misses her menstrual period, and before many women have confirmed or are aware of a pregnancy.[3][66][67] A study produced by researchers at the University of Texas at Austin claims that the bill would prohibit 80% of abortions in Texas and would disproportionately affect black women, lower-income women, and women who live far away from facilities that provide abortion services.[68]

The act is widely noted for its use of a unique civil enforcement mechanism and the absence of a criminal enforcement provision.[69] This was designed to place the burden of enforcement on the populace through civil lawsuits rather than on state actors, as well as to deny abortion providers the opportunity to seek federal court injunctions against the enforcement of an unconstitutional statute by state officials. Since the law cannot be enforced by state officials but only by private individuals, there is uncertainty as to whom to sue in order to challenge the constitutionality of the act prior to enforcement.[70] At the federal level, the Partial-Birth Abortion Ban Act of 2003 contained both criminal and civil enforcement provisions that restricted access to certain abortions (as opposed to all abortions after a certain time, which would conflict with the holding in Roe v. Wade). The civil enforcement mechanism allowed the father and maternal grandparents of the fetus to sue for statutory damages. While the criminal enforcement provision was blocked for a time by federal district courts before being upheld by the Supreme Court in a 5-4 decision (see Gonzales v. Carhart), the federal Act's civil enforcement mechanism was not utilized and therefore decided in the case, and thus arguably remains federal law.[38]

In light of this feature in the law, U.S. Supreme Court Chief Justice John Roberts wrote that "the statutory scheme before the court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime."[2] On September 9, 2021, however, the U.S. Justice Department sued the State of Texas directly in the U.S. District Court for the Western District of Texas, seeking a declaration that the law is unconstitutional, and injunctive relief (see United States v. Texas).[71]

Legal challenges[]

Pre-enforcement litigation by providers and advocates[]

A Dallas attorney filed a lawsuit and accompanying request for a restraining order in Dallas Texas District Court attempting to block the bill, arguing that the language of the law prevents attorneys from consulting with clients about abortion, even in cases of rape and incest, and is thus a violation of attorney-client privilege and victims rights of the sexually abused.[72] This action was nonsuited and refiled in Travis County (Austin, Texas), where it remains pending, along with numerous companion cases by abortion providers and funders, who are all represented by the same attorneys.

On September 3, 2021, a Travis County judge granted three Texas Planned Parenthood affiliates a temporary restraining order against Texas Right to Life, with a temporary injunction hearing set for September 13. The ruling temporarily blocks the anti-abortion group and affiliated individuals from suing them under the Act.[73] Another trial court judge later signed an agreed temporary injunction order in the same case.[74][75]

Whole Woman's Health v. Jackson[]

Before the new law went into effect, a group of abortion providers led by Whole Woman's Health (WWH) sued to get a preliminary injunction to stay enforcement of the law on September 1, 2021. Their suit included a state district court judge and his court clerk as representative defendants for all state judges and clerks that have jurisdiction to hear suits brought under the Heartbeat Act, in addition to other state officials include attorney general Ken Paxton, and a private individual that had publicly stated their intent to file suit against an abortion provider once SB 8 came into effect. The abortion clinics challenged the sovereign immunity portion of the law, stating that because the judges and clerks are involved with enforcement of SB 8, they can be defendants to legal challenges due to the Ex parte Young doctrine. In late August 2021, district judge Robert L. Pitman rejected a motion to dismiss the case and scheduled a hearing on the temporary injunction requested by the plaintiffs. An expedited appeal to the U.S. Court of Appeals for the Fifth Circuit led that court to stay the district court's proceedings, on the basis that the state official defendants were likely immune from being sued while the case against the private individual remained in consideration.[76] The plaintiffs filed an emergency application with the Supreme Court on August 30, 2021, seeking an order to block the Act from going into effect.[77] Late on September 1, 2021, nearly 24 hours after the Act had come into force, the Supreme Court denied the motion in an unsigned order,[78] though four Justices wrote or joined dissents that stated they would have granted the injunction pending legal evaluation. The majority opinion on the motion stressed that the denial of immediate relief did not preclude other legal challenges in lower federal or Texas state courts.[79][80]

The Fifth Circuit issued a second order on September 10, 2021, ruling that the state judges, clerks, and other officials were not proper defendants, while the case against the private individual remained and was to be evaluated by the Circuit court at a later date. Again, the plaintiffs filed a petition for a pre-judgment writ of certiorari at the Supreme Court based on the Fifth Circuit's order, again seeking an injunction on the enforcement of SB 8.[81][82][83] The Supreme Court, in its related actions to United States v. Texas, denied the plaintiff's motions in WWH v. Jackson, but certified the petition for the case, and scheduled its oral arguments alongside United States v. Texas for November 1, 2021.[84]

The Supreme Court issued its decision on December 10, 2021, upholding parts of the Fifth Circuit but reversing others. The Court ruled that the abortion clinics' lawsuits against certain state officials may proceed as they have direct involvement in the enforcement of SB8, while the lawsuits against other state officials like Paxton and judges should be dismissed due to their lack of involvement in enforcement. Regardless, the Supreme Court allowed the law to remain in effect.[85]

United States v. Texas[]

United States Attorney General Merrick Garland announced on September 6, 2021, that the Justice Department (DOJ) will protect abortion seekers in Texas under the Freedom of Access to Clinic Entrances Act.[86] The DOJ filed their suit against the state on September 9, 2021, in the District Court for the Western District of Texas, with the suit claiming "the law is invalid under the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity".[87][88] The DOJ asked for an emergency motion for a temporary restraining order or a preliminary injunction of SB8 on September 15, 2021.[89] In its defense, Texas challenged the standing of the federal government to seek remedies against private individuals and sought dismissal of their case.[90][91]

District judge Robert L. Pitman, who was also overseeing the WWH v. Jackson case, issued a preliminary injunction blocking enforcing of the Act on October 6, 2021, ruling that the United States government does have standing to challenge Texas' law.[92] Texas appealed to the Fifth Circuit Court of Appeals on October 8, 2021,[93][94] and in a per curiam decision that day, the Fifth Circuit put a hold on Pitman's order, "pending the court's consideration of the emergency motion".[95] On October 14, 2021, the motions panel granted the State's and the three aligned Intervenors' motions for emergency stay in a brief order that merely referenced the decision rationales articulated by the SCOTUS and the Fifth Circuit in the pending WWH v. Jackson case.[96] They also ordered that the appeal on the merits be jointly taken up on an accelerated basis by the same panel of the Fifth Circuit that will hear oral argument in the WWH v. Jackson appeal.

The DOJ filed an application for emergency relief from the Supreme Court on October 18, 2021.[97][98][99] On October 22, 2021, the SCOTUS declined to grant the DOJ's emergency request to lift the Fifth Circuit's stay, but did grant the petition for certiorari before judgment and set expedited oral arguments for November 1, 2021. In certifying the case, the Supreme Court limited the case to review the question of the standing raised by the state. The oral arguments for United States v. Texas will be heard alongside those for WWH v. Jackson.[100][101] Justice Sotomayor concurred in the decision to hear the case on an expedited basis, but dissented on the denial of an immediate stay order in the interim.[102]

The Supreme Court ruled in a per curiam decision on December 10, 2021, to dismiss the case as improvidently granted.[85]

Other pending Supreme Court petitions[]

SCOTUS cases relating to United States v. Texas[]

No. 21-588,  United States, Petitioner v. Texas, et al., docketed October 14, 2021 in conjunction with consideration of application (21A85) to vacate Fifth Circuit stay presented to Justice Alito and by him referred to the Court is deferred pending oral argument on November 1, 2021.

No. 21A85, United States, Petitioner v. Texas, et al., Application to vacate stay of preliminary injunction issued by U.S. Court of Appeals for the Fifth Circuit by the United States. Submitted to Justice Alito and referred to the Court. Consideration deferred pending oral argument on November 1, 2021.

SCOTUS cases relating to Whole Woman's Health v. Jackson[]

No. 21-587, Penny Clarkston, Petitioner v. Whole Woman's Health, et al., docketed October 21, 2021. Petition for a writ of certiorari before judgment filed. Response due November 22, 2021. Ms. Clarkston is the District Clerk serving the 114th District Court and other district courts in Smith County, Texas. The presiding judge of the 114th District Court is the primary official-capacity defendant in Whole Women's Health v. Jackson.

No. 21-583, Stephen Brint Carlton, et al., Petitioners v. Whole Woman's Health, et al., docketed October 21, 2021. Petition for a writ of certiorari before judgment filed. Response due November 22, 2021.

No. 21-582, Mark Lee Dickson, Petitioner v. Whole Woman's Health, et al., docketed October 21, 2021. Petition for a writ of certiorari before judgment filed. Response due November 22, 2021. Mr. Dickson is a private individual and pro-life advocate, and was named as a defendant because abortion providers anticipated that he would bring SB8 actions against them.

No. 21-463, Whole Woman's Health, et al., Petitioners v. Austin Reeve Jackson, Judge, District Court of Texas, 114th District, et al. Petition for a writ of certiorari before judgment filed on September 23, 2021, GRANTED on October 22, 2021. Oral argument set for Monday, November 1, 2021. Judge Jackson is on record as being pro-life and was named as a proposed class representative for all Texas judges who might hear SB8 cases.

No. 21A24, Whole Woman's Health, et al., Applicants, v. Austin Reeve Jackson, Judge, et al., docketed August 30, 2021. Application for emergency injunction denied by the court per curiam, with separate opinions issued by Chief Justice Roberts, with whom Justice Breyer and Justice KAGAN join, dissenting; Justice Breyer, with whom Justice Sotomayor and Justice Kagan join, dissenting; Justice Sotomayor, with whom Justice BREYER and Justice KAGAN join, dissenting; and Justice Kagan, with whom Justice Breyer and Justice Sotomayor join, dissenting.

First lawsuits enforcing the Act[]

On September 18, 2021, in an op-ed published by The Washington Post, San Antonio physician Alan Braid admitted that he had performed an abortion that was illegal under the Act on September 6. He stated that he performed the abortion "because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care." He acknowledged that he would be opening himself up to liability from civil lawsuits related to the Act.[103][104]

On September 20, 2021, Oscar Stilley, a former lawyer in Arkansas, filed a lawsuit against Braid for providing the abortion.[105] Stilley told reporters that he did it in an effort to speed up the process of getting the law reviewed. Another lawsuit by Felipe Gomez of Chicago was filed against Braid the same day. Gomez argues for the law to be declared unconstitutional as the law is illegal until Roe v. Wade is reversed or modified.[106] Both lawsuits were commenced in San Antonio in the defendant's county. One is in forma pauperis. Both plaintiffs are not averse to publicity.[107] Both have also intervened in the federal case brought by the DOJ against Texas. Legal experts expect SB 8 lawsuits brought by self-described pro-choice plaintiffs to fail for lack of a controversy and thus standing.

Challenges to the Act in State courts[]

More than a dozen other lawsuits, some filed before the Act's September 1, 2021 effectiveness date, make various constitutional arguments. The cases opposing SB8 sought various forms of relief including injunctive and declaratory relief and were combined to be heard in Travis County District Court. With one exception, they name state officials as defendants, including numerous GOP legislators, in addition to Texas Right to Life, one of the largest pro-life organizations in Texas. Although the State of Texas is also named a defendant in most of these cases (as in federal court), and although the matter is of high public interest, an omnibus motion has been filed to seal the court records, which was set for hearing on October 4, 2021, at 2PM.[108] Multiple pending cases were also set for temporary injunction hearings that day.[109] Because the MDL Panel has imposed an immediate stay on further trial court proceedings in the Travis County cases, however, it is unclear what will happen next. The motion to seal court records has drawn opposition, and the temporary restraining orders have expiration dates.

On October 15, 2021, the Multi-District Litigation Panel granted Texas Right to Life's motion and assigned a senior-status judge to preside over the 14 cases.[110] On December 9, 2021, J. Peeples granted some of the relief requested by the petitioners but ultimately refused to block enforcement of the Act until determination of other issues.[111]

Additional Texas abortion legislation[]

On September 21, 2021, Abbott signed Senate Bill 4, which bans any person "from providing an abortion‑inducing drug to a pregnant woman without satisfying the applicable informed consent requirements for abortions," which includes providing the drugs to women seven weeks into a pregnancy. SB4 mandates that physicians who provide such drugs obey specific reporting requirements, or otherwise be charged with a state jail felony punishable by up to two years to jail and a $10,000 fine.[112][113][114]

Responses and results[]

In February 2022, Texas Health and Human Services released data describing abortion procedures performed in Texas on Texas residents for September 2021, the first month the law was in effect. Altogether, total abortions performed in Texas on Texas residents fell 59% to 2,197 abortions from 5,404 abortions the previous August. By percentage, the decline in abortions between August and September was less for women in higher age brackets up to 30–34 years of age, which saw a 55% decline. The decline for women aged 35–39 years was also 55%, and for women 40 years and over the decline was 58%.[115]

In September 2021, suction curettage abortions fell 72% to 725 abortions, compared to 2,550 abortions during the previous month of August. Non-surgical abortions carried out with prescription drugs fell 44% to 1,471 abortions, compared to 2,623 abortions the previous August. No dilation and evacuation abortions were performed, compared to 221 dilation and evacuation abortions during the previous August. One sharp curettage abortion was carried out, compared to ten abortions the previous August.[115] Abortions performed at 8 weeks or less accounted for 2,195 of the abortions, compared to 4,649 abortions at the same gestational age during the previous August, a drop of 52%. There was also one abortion at 9–10 weeks gestation and one abortion at 17–20 weeks gestation. During the previous August there were 755 abortions carried out from 9 to 25 weeks gestation.[115]

Academic opinions[]

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 declare abortion to be a constitutionally protected activity. That the Act has succeeded in eliminating access to post-heartbeat abortions in Texas while Roe v. Wade ostensibly remains the law of the land has only added to the controversy surrounding the law. Law professors that support abortion rights, such as Michael C. Dorf of Cornell University, have denounced the Act and its enforcement mechanism as "diabolical."[116] Opponents of abortion, by contrast, have praised the Act's circumvention of Roe v. Wade as "brilliant"[117] and "genius."[118]

Academic opinion is divided on whether the Heartbeat Act can be subject to pre-enforcement judicial review given that no state officials are charged with enforcing the law. In an Op-Ed published in the New York Times, law professors Laurence Tribe and Steve Vladeck acknowledged that the Act's enforcement mechanism "makes it very difficult, procedurally, to challenge the bill’s constitutionality in court," but claimed that abortion providers "should" be able to challenge the law's constitutionality by suing state-court judges and court clerks.[119] The Supreme Court, however, rejected this idea in Whole Woman’s Health v. Jackson, holding that abortion providers could not sue state-court judges or court clerks under the doctrine of sovereign immunity. Other legal scholars, such as Harvard’s Stephen Sachs[120][121][122][123] and Yale’s Akhil Reed Amar,[124] have argued that existing doctrine precludes abortion providers from challenging the constitutionality of SB 8 in pre-enforcement litigation.

Professor Tribe has suggested ways for the United States Department of Justice to combat the effects of the Texas Heartbeat Act. In an Op-Ed published on September 5, 2021, Tribe urged DOJ to prosecute any individual who sues an abortion provider under sections 241 or 242 of the federal criminal code, which make it a crime to deprive individuals of any constitutional rights.[125][126] Professor Tribe later, on September 7, 2021, also suggested using a "civil parallel of the Ku Klux Klan Act" to deter individuals from suing abortion providers who violate the Texas Heartbeat Act.[127][126]

Lawyers Tribe and David Rosenberg recommended that the U.S. Attorney General launch criminal prosecutions and sue private parties under the Ku Klux Klan Act of 1871, on the grounds of deprivation of rights under color of law.[128] The two also pointed to the precedent of Larkin v. Grendel's Den, Inc.[129] as an argument against the constitutionality of delegating certain government decisions to private parties. The Department of Justice has not yet acted on any of Professor Tribe's suggestions.

Conservative legal scholars, including Harvard Law Professor Stephen Sachs and Ed Whelan from the Ethics and Public Policy Center, have raised questions about the nature of relief sought by the abortion providers, their legal standing to bring suit, and the procedural and legal hurdles that make granting such relief implausible.[130][131]

The private remedies authorized by SB 8, however, can only be awarded by a state court in a lawsuit brought under SB 8, which is why Whole Women's Health and a group of abortion providers sued a Texas judge under Section 1983 of the Civil Rights Act to enjoin him and a defendant class of all other Texas trial-level judges from entertaining SB 8 lawsuits. On September 10, 2021, however, a motions panel of the Fifth Circuit Court of Appeals rejected the idea that state judges and their court clerks could be sued in federal court to prevent them from hearing SB 8 cases, characterizing the approach as absurd.[132]

In an op-ed piece for THE HILL, Alan Dershowitz, emeritus professor of law at Harvard, suggested that liberal states could enact laws offering similar bounties for citizen lawsuits against anyone who facilitates the sale or ownership of handguns.[133] In February 2022, Governor of California Gavin Newsom directed his administration to develop such a bill to "allow private citizens to sue anyone who manufactures, distributes, transports, imports into the state or sells assault weapons, .50 BMG rifles, ghost guns, or ghost gun kits." [2]

Responses and protests by organizations and businesses[]

A Satanic themed sign at a rally against the law at the Texas Capitol

The pro-life organization Texas Right to Life established a "whistleblower reporting system" that enabled residents to anonymously report suspected violators of the bill.[134] Their website came under denial-of-service and satirical attacks featuring copypastas and eroticized fan-art of Shrek based on the prevalent internet meme,[135] as well as profuse non-pertinent and misleading information.[136][137]

On September 3, hacktivist group Anonymous announced "Operation Jane", an initiative to oppose the law. The group subsequently hacked the website of the Republican Party of Texas, replacing it with text about Anonymous, an invitation to join Operation Jane, and a Planned Parenthood donation link.[138] On September 13, the group released a large quantity of private data belonging to Epik, including domain purchase and transfer details, account credentials and logins, payment history, employee emails, and unidentified private keys.[139] The Distributed Denial of Secrets (DDoSecrets) organization said later that day that they were working to curate the allegedly leaked data for public download, and said that it consisted of "180 gigabytes of user, registration, forwarding and other information".[140] Publications including The Daily Dot and The Record by Recorded Future subsequently confirmed the veracity of the hack and the types of data that had been exposed.[141][142]

On September 3, 2021, webhost GoDaddy gave the website 24 hours to find a new host before terminating their service for multiple terms-of-service violations.[143] On September 4, the website changed its domain registration to Epik, a registrar and web hosting company known for providing services to websites which have been denied service for content policy violations by other providers. The site went offline later that day, after Epik told the group they had violated their terms of service by collecting private information about third parties; the website subsequently began redirecting users to the Texas Right to Life organization's website.[144]

A non-profit organization that supports abortion-rights announced that after the law went into effect their website traffic had increased with a large number of traffic coming from Texas. Through the site, visitors can view information about abortion pills and care providers.[145]

On September 4, 2021, The Satanic Temple, a self-described nontheistic religious and human rights group, filed a letter of complaint to the US Food and Drug Administration arguing that the law violated the constitutional rights of members to free religious practice, referring specifically to the Religious Freedom Restoration Act.[146]

Ride-sharing services Lyft and Uber announced that they would cover 100% of the legal defense costs for any of their drivers sued under this new law, while dating app companies Bumble and Match Group, owner of Tinder, announced they would establish a relief fund to assist Texas women seeking abortions.[147][148]

John Gibson, the CEO of the video game developer/publisher Tripwire Interactive, tweeted in support of the bill and the Supreme Court's decision to not block its enforcement on September 4, 2021. Over the next few days, video game journalists, other developers, and members of the players' community expressed outrage at the tweet, leading to Gibson stepping down as CEO on September 6, 2021, and Tripwire distancing itself from Gibson's statement.[149]

On the day the act went into effect, protesters rallied in the Texas state capital of Austin, Texas.[150] Women in Dallas protested while wearing costumes from The Handmaid's Tale, a dystopian novel about women living in a totalitarian theocracy.[151] Other small demonstrations were organized near city halls of other Texas towns.[152] The day after the bill was enacted, the hashtag #texastaliban, a critical reference to the Taliban, trended on Twitter with over 50,000 tweets.[134]

Pussy Riot performing at the 2021 Women's March at the Texas Capitol

Protests occurred in about 600 places nationwide on October 2. They were called the 2021 Women's March.[153]

Public opinion on the law is divided, with two polls showing a narrow majority support the new legislation. One poll showed that roughly 55% of Texans support the law, compared to 45% who oppose it.[154] Another poll showed a plurality of 46% of Texans supporting the law, while 43% remain opposed.[155]

The law is supported by various anti-abortion organizations including .

Reactions by political officials[]

President Joe Biden criticized the act, describing it as "extreme" and saying it "blatantly violates the constitutional right established under Roe v. Wade".[156] Senator Elizabeth Warren argued that it is time to "step up and codify Roe into federal law".[134] Congressional candidate for the 28th district of Texas, Jessica Cisneros, also spoke out against the act, stating that the law puts women at risk and it has a disproportionate impact on women of color and low income women. She stated, "When laws that push access to reproductive health care out of reach take effect, it's always women of color and low-income communities that are most harmed. Others who have the resources and connections will always find a way to receive the care they need."[157]

Some Republicans, such as South Dakota governor Kristi Noem praised the act, while others (including 2021 Virginia gubernatorial candidate Glenn Youngkin and Senate minority leader Mitch McConnell) were more leery.[158] Some other states, including Florida[159] and Ohio[160] have introduced legislation with language that mimics the Texas law.

On December 11, 2021, a day after the Supreme Court effectively upheld enforcement of the law in Whole Woman's Health v. Jackson, Governor Gavin Newsom of California called for the state legislature to apply the legal framework from Texas' law to gun control, seeking a bill that would introduce a private right of action against manufacturers, distributors, and sellers of assault weapon or ghost gun supplies in the state.[161][162]

See also[]

Notes[]

  1. ^ “Unlike the action potential in skeletal muscle cells, the cardiac action potential is not initiated by nervous activity”

References[]

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External links[]

  • U.S. v. Texas, no. 21-796 (W.D. Tex. Sep. 9, 2021); complaint filed by U.S. Justice Department to invalidate the Act.
  • Docket and documents for United States v. State of Texas, No. 1:21-cv-796 (W.D. Tex. Sept. 9, 2021) and Fifth Circuit Court of Appeals Docket #: 21-50949
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