What is Texas’ new abortion law?
A controversial new law in Texas banning most abortions after six weeks went into effect on Sept. 1. The Texas Heartbeat Act, S.B. 8, bans abortions once any cardiac activity can be detected inside the embryo, typically in the sixth week of a pregnancy. The law makes no exceptions for rape or incest.
Abortions are only permitted if the pregnancy is life threatening to the mother, or could cause major and irreversible damage to a major bodily function of the mother.
The bill was initially introduced on March 11 to the Texas House of Representatives by Republican Rep. Shelby Slawson and to the Texas Senate by Republican Sen. Bryan Hughes. The bill was signed into law by Gov. Greg Abbott on May 19.
What is new about this law?
S.B. 8 differs from previous bans because it does not rely on the state to enforce the ban. Instead, the law allows for private citizens to sue anyone who either performs an abortion or “aids and abets” an abortion, including drivers to an abortion site or those paying for or reimbursing the costs of an abortion.
Because the law uses private citizens for enforcement, it is more difficult to challenge in the courts due to how protections for those seeking an abortion, such as the Freedom of Access to Clinic Entrances Act, only protect them from intimidation or violence instead of lawsuits.
How does this affect the U.S. outside of Texas?
Abortion providers in Texas challenged the law in an emergency application to the U.S. Supreme Court. The Court voted to not block the law in a 5-4 decision.
The Supreme Court will hear a Mississippi case in the upcoming term regarding a law that bars most abortions at 15 weeks. The case, Dobbs v. Jackson Women’s Health Organization, challenges another pre-viability—banning abortions before any cardiac activity is detected— ban with the state of Mississippi formally asking the Court to overturn Roe v. Wade.
Both the Mississippi and Texas laws directly challenge the Court’s 1973 Roe v. Wade decision that protects a woman’s right to have an abortion in the U.S. without government intervention.
According to the ruling, while the state has interest in protecting the health of pregnant women and the baby, the weight of these interests varies over the course of pregnancy, and the law must account for any changes in viability.
With a solid conservative majority on the Supreme Court, there could be major implications for reproductive rights. Some state lawmakers such as Arkansas Sen. Jason Rapert and South Dakota Gov. Kristi Noem said they plan to mimic Texas’ law because of its success in the legal system so far.
What is happening with the law moving forward?
The U.S. Department of Justice sued Texas on Sept. 9, with U.S. Attorney General Merrick Garland citing S.B. 8 as unconstitutional due to its preventing women from exercising their constitutional rights under the Court’s precedent in Roe v. Wade decision.
“The act is clearly unconstitutional under long-standing Supreme Court precedent,” Garland said in a Sept. 9 news conference at the White House. “Those precedents hold, in the words of Planned Parenthood v. Casey that ‘a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’”
In response to the Texas and Mississippi laws, The Women’s March will be hosting marches in all states on Oct. 2, two days before the Supreme Court reconvenes on Oct. 4.