This article has been written by Dhriti Thingalaya. Here, the author attempts to present significant changes that took place after the remarkable judicial decision that changed the fate of abortion laws in the USA. This is an elaborative article on different areas of abortion laws in Texas. It also gives an overview of how the law has progressed over the past few years by giving a timeline of those years and extensively explaining the Heartbeat Act and its aftermath.

Table of Contents

Introduction 

The abortion laws in the US vary significantly from state to state, as different states impose different restrictions on the procedure of abortion. The levels of banning or restricting  abortion policies differ based on the stages of pregnancy, with certain exceptions. Some states permit abortion up to a certain point in a woman’s pregnancy, while other states allow it at all stages of a woman’s pregnancy period. There are also states where abortion is legal, but it comes with several limitations, like gestational limits and waiting periods between  counselling and the actual abortion procedure. In many states, women seeking an abortion are required to receive counselling that includes information about the procedures, potential risks and alternatives to abortion, and insurance restrictions that cover abortion services or any such ban on specific procedures after a certain gestational stage.  

The current legal status of all the states in the USA is that of broad discretion provided to prohibit or regulate abortion. There are several judicial pronouncements from 1973 to 2022 that have changed the fate of women’s right to get an abortion in the USA for different states. One such renowned judgement is based on the Supreme Court ruling in Roe v. Wade (1973). In this case, the Supreme Court affirmed the right to liberty in the Constitution of the United States, 1789, specifically safeguarding personal privacy. This protection extends the right to make decisions regarding pregnancy. Notably, the Roe decision raises reproductive decision-making to the same level as that of other fundamental rights, like the right to life and right to equality. But this ruling was reversed 49 years later in the 2022 Dobbs v. Jackson’s case in 2022. This case took away the constitutional rights to abortion and paved the way for states to ban abortion, abandoning the age-old principle that was followed and ruled that there is no constitutional right to abortion. 

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With the overturn of Roe v. Wade by the Supreme Court of the USA in June 2022, abortion policies are now in the hands of each state. After the immediate effect of the above-mentioned decision, the majority of states in the USA have taken quick action by reframing their policies. But one of the largest states that had a huge impact with this ruling is the state of Texas. This state has banned nearly all abortions, and the goal here, in this article, is to identify the different aspects of Texas abortion law and the policies framed by various states in the USA with respect to the new law in force.  

History and evolution of Texas abortion laws 

History of abortion laws in Texas dates back to 1854. The General Law of Texas, 1854 criminalised the act or attempt to procure the miscarriage of any pregnant woman. Since then, various other laws were formulated along with judgments which caused a huge upheaval in the abortion laws of Texas. In the subheading below, the date-wise development in Texas abortion law is discussed in detail. 

Timeline of Texas abortion laws 

1925 laws

The Texas laws of 1925, also known as pre-Roe laws, still find their significance in recent times, as the legislature never really removed them from their statutes despite the fact that they were declared unconstitutional by the remarkable Roe v. Wade judgement. In Dobbs vs. Jackson’s ruling of 2022, Attorney General Ken Paxton indicated that there was potential for the enforcement of these laws. 

Before Roe v. Wade, many states in the United States had either  banned abortion or had strictly restricted it. These laws created in the 19th and 20th centuries mostly targeted those who performed abortions rather than women seeking the procedure. The main goal here was to protect pregnant women and their unborn babies from any harm. 

In the early 20th century, almost all states prohibited abortion, but social change in the following decades, driven by movements like women’s suffrage and feminism, led to a push for more political and sexual freedom for women. In 1967, Colorado became the first state to  expand the circumstances under which a woman could legally have an abortion. By 1970, 11 more states had similar changes and 4 States had completely removed criminal penalties for abortion during early pregnancy.

During this time, abortion rights advocates challenged existing state laws in courts, arguing that they were unclear or violated privacy or equal protection rights guaranteed by the U.S. Constitution. However, state and lower federal courts often rejected these arguments, leading to a complex legal landscape regarding abortion rights.

1973: Roe v. Wade finds Texas abortion laws to be unconstitutional

The Supreme Court in this case efficiently weighed women’s right to privacy against the state’s interest in safeguarding potential life. According to the decision passed in this case, states were permitted to regulate abortion based on the changing extent of the pregnancy stages. During the second trimester, states could impose restrictions to safeguard mental health, while a full-fledged ban on abortion is only possible during the third trimester.

1993: Planned Parenthood v. Casey introduces “viability” standard for abortion laws

In this case, the U.S. Supreme Court not only affirmed the precedent set by Roe v. Wade, but it also introduced abortion laws. This case also restores the ‘undue burden standard’. And assesses whether the law is placing a significant obstacle in the way of a woman seeking an abortion before the foetus reaches viability. This ruling reversed Roe’s trimester framework, granting states the authority to regulate or restrict abortion once the foetus achieves viability and can survive outside the womb. This case also overturned Roe’s “trimester” structure, instead allowing states to regulate or prohibit abortion once the foetus was “viable” and able to survive outside the womb.

2003: Women’s Right to Know Act

This law requires the doctors performing an abortion to provide all the necessary information regarding the risks and medical support given to the patient during the abortion procedure. The law also requires that all abortions at 16 weeks of gestation or later be performed in an ambulatory surgical centre, which is basically a mini-hospital. Not one of Texas’ 54 non-hospital abortion providers met the standard of an ambulatory surgical centre when the law took effect in 2004.

2011: Sonogram required

In 2011, the HB 15 Bill was enacted, which was related to informed consent to an abortion. It required the physician to mandatorily provide sonogram services for at least 24 hours before performing an abortion procedure. The law requires the physician who is to perform the abortion to display the sonogram images in a manner consistent with current medical practice so that the woman undergoing that process can clearly see them. Then, the doctors are required to provide a verbal explanation of the results of the sonogram image in a manner that even a layman can understand. The verbal explanation would include a medical description of the dimensions of the embryo and foetus, the presence of cardiac activity and the presence of external and internal organs.

The patient has the right to see the sonogram and hear the heartbeat.  It should be noted that pregnant women may choose not to get the description of the sonogram if the pregnancy is the result of assault or incest, if the patient is a minor, or if the fetus has an irreversible condition. So, this is what the Texas law requires, a sonogram’s explanation before performing an abortion 

2013: Forbidding abortion at or after 20 week post fertilisation

The Texas legislature introduced House Bill 2, which brought in additional restrictions on clinics performing abortions and also on the distribution of abortifacient drugs (drugs used to perform medical abortions). HB2 requires physicians performing abortions to be granted admitting powers. Admitting powers are special powers granted by hospitals to doctors to allow them to admit patients for treatment within 30 miles of the concerned hospital, where the abortion was performed. 

HB2 also required the doctors to check the post fertilisation stage and prohibited doctors from performing abortions if it was seen that the foetus was 20 weeks or older. Further, all abortion care facility providers are required to adhere to the standards of ambulatory surgical centres (mini-hospitals). Apart from that, this law also allowed only doctors to distribute oral abortifacients. While distributing and administering those drugs, they need to follow a state protocol, including a mandatory follow-up visit within fourteen days.

2016: New restrictions on minors

In the case of Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court invalidated certain abortion laws in Texas, deeming them unconstitutional as they placed an undue burden on access to abortion. The court specifically ruled that admitting privileges at nearby hospitals and imposing surgical centre standards on abortion clinics constituted significant obstacles to women seeking abortion services.

2017: Texas banned coverage in the Insurer Plan and tissue disposition during partial birth abortions

The health insurance plan must not include abortion care, as Texas law has banned insurers from including coverage plans for abortion, requiring people to buy a separate plan for abortion care. The 85th Legislature’s SB 8 added two new subchapters to the Women’s Right to Know Act. Subchapter F, which prohibits “partial-birth” abortions, has been termed by Congress as crossing a line from abortion to infanticide. Subchapter G prohibits “dismemberment abortions, which is a previous method of practicing infanticide.”  

2019: Texas legislature Senate Bill 22

This Bill bans government entities from entering into partnerships or providing any medical assistance or otherwise to the clinics that are affiliated with providing abortions. This further cuts off vital support to low-cost clinics, which people rely on for basic healthcare facilities. Further, in the same year, Texas House Bill 16 was passed, criminalising abortion providers who do not provide medical treatment for the foetus if born after an abortion. 

2021: Texas Heartbeat Act

The Senate legislature passed Senate Bill 8 (SB8). This law bans abortion after 6 weeks of pregnancy; sometimes this time lapses even before a woman knows that she is pregnant. This unprecedented law also authorises private individuals to file a civil lawsuit for providing, detecting, or aiding abortion after a foetal heartbeat is detected. The law also incentivizes those individuals who successfully sue an abortion provider by offering at least $10,000.

2022: Dobbs v. Jackson Women’s Health Organization overturns Joe v. Wade

In the case of Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court of the US passed a judgement overturning the wrongly interpreted Roe v. Wade’s case. It was found that the right to access abortion was not included in the US Constitution. This case then gave all the states the liberty to frame their own abortion policies without restriction. This significant case proved to be a potential trigger listed in Texas’s trigger law. This potential trigger then led to the prohibition of many abortions, with effect from August 25, 2022.

Historical decision of Roe v. Wade and overturning of Texas abortion laws 

Facts of the case

In this case, Norma McCorvey, whose legal pseudonym is Jane Roe, a pregnant woman, filed a lawsuit against Henry Wade, who was the district attorney of Dallas County, Texas, at the time. She was denied the right to abort her child, which breached her privacy rights as mentioned in the Fourteenth Amendment. 

A Texas doctor also came to the forefront alongside Jane Roe for supporting her cause of action, asserting that the state’s abortion laws were too vague to follow. He was also detained for violating the provision of the State Penal Code of 1857, the statute that was in existence at that time, wherein Texas was under a near total ban on abortion unless it was done to save the mother’s life. At that time, abortion was illegal in Texas, except in the case where it was carried out to protect a mother’s life; otherwise, it was a criminal offense to get an abortion or even provide an aid for the same. Thus, in this lawsuit, Jane Roe challenged the constitutionality of the Texas abortion law, which banned abortion. And it was claimed by her that such a law violated her right to privacy, which was guaranteed under the Fourteenth Amendment of the Constitution of the US.

Before this case went to SC, it was decided by the US District Court, which had given its verdict in favour of Jane. To this end, the opposite party appealed to SC. 

Issues raised

Does the Constitution protect or recognize women’s right to terminate her pregnancy by abortion?

Arguments advanced

Each side presented several arguments before the Supreme Court; here the author has highlighted the important ones.

Texas defend absolute restrictions

  • States have the right to frame policies regarding health, maintaining medical standards, protecting prenatal life, and safeguarding the interests of the public at large.
  • The contention in Roe v. Wade centred on the recognition of a foetus as a person protected by the Fourteenth Amendment.
  • Safeguarding pre-natal life since its conception is a compelling interest of the state.

Roe claims absolute privacy rights

Joe Roe and others involved based their case on the following arguments.

  • The Texas abortion law violated individuals 14th Amendment rights.
  • The Texas abortion law encroached upon protected zones of marital, familial and sexual privacy guaranteed by the Bill of Rights. 
  • The right to have an abortion is absolute, maintaining that an individual has an unequivocal entitlement to terminate a pregnancy at any time, for any reason and through any means of their choosing.

Supreme Court’s decision

The US Supreme Court listened to  the arguments of both parties. First, the court did consider that abortion falls under privacy rights. Privacy rights in the USA stem from the “Due Process Clause” of the 14th Amendment. Although the Due Process clause does not itself expressly articulate the right to privacy, the Supreme Court officially recognized this right in 1891. In the landmark case of Roe v. Wade, the Court further affirmed the right to privacy, establishing it as a constitutional protection within the broader framework of individual liberties.

The Court was a little unconvinced with the state’s defense regarding constitutional protection of the foetuses since its inception; rather, it says that the Constitution protects those who are “born or naturalised.” Also, there is no specific definition for “person.” So, after full-fledged research over unborn children’s cases, it was recognized that the unborn children have never been recognized in the law as persons in the whole sense.

In this significant case, there is a discussion that takes on a spiritual undertone by mentioning different views on when life begins. In the Jewish faith, life is believed to begin at birth, whereas in the prevailing view held in Catholic beliefs, life begins at conception. Doctor’s views vary. They tend to believe that life commences before birth. The Supreme Court, in Roe v. Wade, established that determining when life begins is not within the purview of individual states. Contrary to accepting an absolute right to abortion, the Court opted for a nuanced approach, crafting a framework to balance state interests with privacy rights. 

Acknowledging the potential conflict between the rights of pregnant people and the state’s interest in protecting potential human life, the Court delineated the rights of each party by dividing pregnancy into a trimester based structure:

  • First Trimester

The Court determined that during the initial 12 weeks of pregnancy, a state cannot impose regulations on abortions beyond ensuring that the procedure is conducted by a licensed doctor in medically safe conditions.

  • Second trimester

In the subsequent 12 weeks, the Court ruled that a state may regulate abortion provided that regulations are reasonably linked to the health of the pregnant individual.

  • Third trimester

During the final semester of pregnancy, the court recognised that the state’s interest in safeguarding potential human life takes precedence over the right to privacy. Consequently, the state may restrict or prohibit abortions in the third trimester  of pregnancy. The state’s interest in protecting the potential human life outweighs the right to privacy, except when necessary to save the life or health of the pregnant individual.

This structured approach seeks to address the inherent tension between the rights of pregnant individuals and the state’s interest in protecting life, offering a very nuanced framework for abortion regulations based on the progressing stages of pregnancy.

Cases surrounding Texas abortion laws

Planned Parenthood v. Casey (1992)

In 1992, the Supreme Court conducted a reassessment of the principles established by Roe v. Wade during its review of Planned Parenthood v. Casey. While reinstating pregnant women’s right to choose abortion, the court departed from the trimester based framework set by Roe and instead introduced a new standard centred on foetal viability- the  stage at which a foetus can potentially survive outside. It means abortion cannot be allowed after the foetus has obtained foetal viability.

Foetal viability is generally considered to occur around seven months into pregnancy (28 weeks), although it can be as early as 24 weeks. This revised standard reflects a nuanced understanding of the evolving medical capabilities and realities surrounding foetal development.

Whole Women’s Health v. Hellerstedt (2016)

In 2016, the Supreme Court evaluated Texas abortion regulations, including  a law imposing stringent requirements on abortion clinics. The case challenged a Texas law known as H.B.2, which imposed restrictions on abortion clinics. The decision emphasised the importance of protecting women’s access to safe and legal abortion. 

June Medical Services v. Gee (2020): Overturning admitting privileges requirement

In 2020, the Supreme Court, in a 5-4 decision, declared the Louisiana abortion statute unconstitutional. The statute required doctors performing abortions to have admitting privileges at a nearby hospital. Chief Justice John Roberts sided with liberal justices, citing the precedent set in Hellerstedt. Both decisions highlight the safety of abortions’ procedures and reinforce the principle that states cannot impose unnecessary burdens on access to abortion services. 

Dobbs v. Jacksons Women’s Health Organization (2022) 

Dobbs v. Jackson Women’s Health Organization (2022), centred on Mississippi’s Gestational Age Act (2019), which prohibited abortion at 15 weeks. Unlike previous challenges, Mississippi explicitly urged the Supreme Court to overturn the Roe v. Wade Judgement. The 6-3 decision made by the Justices was released on June 24, 2022, which actually overturned the Roe v. Wade judgement. This significant change tightened the abortion restrictions to the point that residents now cannot even seek abortion services. This decision has also opened doors for outright bans on abortion.

Facts of the case

In 2018, Mississippi passed a law called the Gestational Age Act (2019), which banned abortions after 15 weeks, allowing exceptions only for medical emergencies or severe foetal abnormalities. The Act also stated that, upon violation of this Act, penalties in the form of licence suspension would be imposed on abortion providers. Jackson Women’s Health Organization challenged this law, questioning its constitutionality. Thomas Dobbs, a Mississippi state health officer, filed a petition for the Supreme Court to review the case. The key question was whether all the previability restrictions on elective abortion are unconstitutional. 

Arguments of the parties

Mississippi’s arguments: They claimed that the state does not guarantee a right to abortion and that states can ban it if it is related to legitimate government interests. They emphasised the 10th Amendment and claimed that the 14th Amendment’s “liberty” does not include abortion as a fundamental right since historical practices treated abortion as a crime. Mississippi also criticised the viability line used in the previous decisions.

Women’s Health Organization arguments: The Jackson Women’s Health Organization argued that abortion is protected by the 14th Amendment, linking it to the concepts of body autonomy and liberty. They highlighted that federal courts have consistently considered viability in their decisions. 

Decision of the case

Justice Alito, writing for the majority, stated that the Constitution doesn’t expressly support a right to abortion. The court argued that abortion isn’t deeply rooted in U.S. history and traditions. They emphasised that before Roe v. Wade, most states tried abortion as a crime. The court rejected the idea that abortion is a fundamental right and left the regulation to the states, suggesting it’s a matter for public debate.

Implications of judgement

With abortion not recognized as a fundamental right, state regulations or state abortion laws will now face rational basis review. This gives states more freedom to regulate abortion for legitimate reasons, subject to a strong presumption of validity when challenged constitutionally. 

Texas Heartbeat Act, 2021

The Texas Heartbeat Act, 2021, came into effect on September 1, 2021. It prohibits abortions once a foetal heartbeat is detected. The law significantly reduces access to abortion services, mainly prohibiting abortions after 6 weeks of gestation. This legislation protects pre-born children in Texas, which marks the first instance since the Supreme Court’s Roe v. Wade’s decision that a law protecting pre-born well before viability was implemented. 

One of the unique features of this law is that it can be enforced by any private individual rather than being directly enforced by the State, or an employee of the state, or a local government entity. This means that any private citizen can file a case against any person who performs or induces an abortion or aids or abets an abortion once a foetal heartbeat is detected. While the woman seeking an abortion is not charged under this Act, this Act is so broad that it can impact other health professionals, receptionists at a health care clinic, family members and relatives, and Uber drivers who drive women to abortion clinics. The individual filing the lawsuit against these people does not need to demonstrate any family connection; a successful case in their favour will entitle them to a minimum of $10,000, and their legal fees will also be covered.

History of Texas Heartbeat Act, 2021

Passing a law that prohibits abortion after 6 weeks when a foetal heartbeat is detected has been a longtime priority for many pro-life Texas legislators. In 2013, House Bill 59 was introduced by a state representative, Phil King. However, this Bill did not pass. In 2019, again, House Bill 1500 was jointly introduced with the same intention to ban abortion after 6 weeks of pregnancy. However, HB 1500 also failed to pass. 

The Texas legislators did not lose hope and came back stronger in the year 2021 with an even better approach, i.e., the Texas Heartbeat Bill, State Bill 8, which was introduced by State Senator Byan Hughes. The other day, a Companion Bill, 1515, was filed by State Representative Shelby Slawson in the Texas House of Representatives. In March, the Senate State Affairs committee reported SB-8 favourably with a 7-2 margin and in April, House Public Health Committee similarly reported HB 1515 favourably by 6-4 margin. Subsequently, on May 6th, HB 1515 successfully passed the Texas State House and on May 13th, SB 8 cleared the Texas State Senate. Then the law was signed by Texas State Governor Greg Abott, who said: “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion. In Texas, we work to save those lives.”

Till date, 13 US States have enacted Heartbeat laws but most of them have been struck down by state Supreme Courts or US Supreme Courts. The legislations enacted by the States were framed mostly in a way that bestows powers upon the individuals to sue the State officials for enforcing an unconstitutional law. Because these laws directly challenge the federal protection under Roe v. Wade which acknowledges the right of women under the constitutional right to privacy whether to have an abortion or not. On the other hand, Texas law adopts a different framing. The newly framed Texas law emphasised on the privatisation of enforcement which evaded the judicial review and protected the state officials from being sued for violating the Constitution, which literally makes the law durable and difficult to challenge.

Following the introduction of the newly enacted Act, which came into effect on September 1, 2021, it has withstood several challenges, like the one wherein the constitutionality of the Texas abortion ban was raised in the Supreme Court on December 10, 2021. In a 5-4 decision, the Supreme Court decided not to stop the controversial Texas ban. This law has been active since September 1, 2021, making it illegal to have an abortion after around six weeks of pregnancy. The Court dismissed a big part of the legal challenge, saying that healthcare providers couldn’t sue healthcare professionals like judges or attorneys general. A small part of the case against the Texas Medical Board continued in the Federal Court, but on March 22, the Texas Supreme Court stopped that too. This decision essentially supports Texas’s unique way of enforcing the law, letting private citizens sue those involved in abortion procedures. As a result, it practically puts an end to most abortion access in Texas. This situation raises more concerns about constitutional rights and how state and federal courts interact.

Recent updates indicate that Texas abortion laws remain restrictive, with legal challenges facing significant roadblocks. The enforcement mechanism allowing private citizens to sue continues to be a controversial aspect  of these laws, contributing to the ongoing debate over reproductive rights and legal authority.

Rationale behind Texas Heartbeat Act, 2021 and significance of a heartbeat

When naming the Act, Texas lawmakers acted strategically and not scientifically. The choice to reference heartbeats and emphasise the significance of vital life functions allowed Texas Republican legislators to further their political agendas and advocate for the right to life. The selection of the name also chose to highlight the objective of the law, which was to prohibit abortions that occur at any point after an ultrasound detects a “foetal heartbeat,” which can be detected as early as six weeks as defined in the statute. 

The scientific community, after analysing it completely, has come to the opinion that the name of the Act is misleading and inaccurate. Dr. Nisha Verma, an OB-GYN specialising in abortion care and providing an abortion facility, asserted that the activity recorded during an ultrasound at an early stage of gestation is actually electrical impulses and not a true heartbeat. Further, Dr. Verma made a statement saying that “the sound that you hear is produced by an ultrasound machine and the sound of a heartbeat is only created through the opening and closing of valves, which don’t exist at six weeks of  gestation.” Doctors say that “heartbeat” is not a medically precise term in early pregnancy because the embryo at six weeks of gestation is only four weeks old and does not possess a fully developed heart. Hence, any activity detected is called electrical or cardiac activity. Medical practitioners are concerned with the law’s six-week time limit and its impact on individual patients.  

Exceptions to abortion bans

Texas abortion law accepts only 2 exceptions in House Bill 3058. It allows doctors to provide abortion care for the following conditions- 

  • when a patient’s water breaks too early for the foetus to survive; or 
  • when the patient is surviving an ectopic pregnancy. 

So, it creates an affirmative defense for doctors and health care who perform an abortion in two scenarios:

  • An ectopic pregnancy (which is when a fertilised egg implants and grows outside the main cavity of the uterus); and
  • A premature rupture of the amniotic membrane in a pre-viable embryo (in other words, the mother’s water broke before the embryo was viable).

Following the decision of the Supreme Court in Dobb’s overturning Roe v. Wade, considerable attention has been diverted towards State abortion bans and the exceptions they incorporate. However, discussions about this aspect of the Texas abortion law often tend to obscure the reality and the practical challenges that it might present, and even the reports indicate that despite falling within the categories of exception, people are facing problems accessing abortion. However, there is no accurate number of people seeking abortion under exceptional circumstances. But after the significant decision in Dobb’s case, the number of individuals receiving abortion care is very low. 

Also, the exceptions  provided under this Bill are vague, narrow and non-clinical definitions, effectively limiting healthcare provider’s ability to cater to the needs of pregnant women. Instead, these decisions are resisted upon the states or clinics. Moreover, some states have multiple bans in effect, often creating complexities with contradicting definitions, requirements, exceptions, and standards, creating complexities and confusion for clinicians and patients. Following are some of the exceptions to the abortion ban.

To prove this defense, the defendant must show that he or she exercised reasonable medical care or treatment for the complications that were arising out of the pregnancy. It is to be noted that, as an affirmative defense, this exception may not prevent an arrest and prosecution; if proven, it would mean that the tag of a crime committed will not be attached.

This Act also protects pharmacists and pharmacies who provide drugs or medications to a doctor to whom this defense applies. This new law went into effect on September 1, 2023.

Under Texas’ abortion ban, the health exception is confined to situations involving a “life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.” To warrant intervention through abortion care, a health condition must not only be “life-threatening” but must also be directly connected to or exacerbated by the pregnancy.

This stringent criterion implies that many serious health conditions unrelated to pregnancy might not qualify for an exception. The challenge arises, particularly in cases where the termination of a pregnancy is necessary to initiate medical treatment. Determining whether the pregnancy itself aggravates the underlying condition and thus qualifies for the exception can be a complex and uncertain process. This restrictive interpretation may pose difficulties for clinicians and women seeking abortion in cases where the health implications are not explicitly linked to the pregnancy itself.

Legal parameters that govern policies of Texas abortion law

Following are some of the important questions that give an overview of the legal aspects of the Texas abortion laws.

Who can be criminally prosecuted under the Texas abortion Law

The Texas Abortion Law allows for the criminal prosecution of individuals who perform, aid, or intend to perform or aid an abortion. While the person receiving abortion is not subject to prosecution, those providing assistance may face legal action. This group includes medical professionals such  as doctors and nurses, family or friends who provide financial assistance for the procedure, pharmacists selling abortion medication and individuals involved in the transportation of the patient to the clinic. For example: Uber and Lyft  have publicly stated that they will cover the legal fees of their drivers who aided the person receiving an abortion.

Who can criminally prosecute under Texas abortion law

Texas district attorneys have the authority to criminally prosecute abortions. One of the district attorneys in the State, named Sharren Wilson from Tarrant County, announced her office will enforce Texas Abortion Law. Nevertheless, other district attorney offices across the state, specifically in Dallas, Austin, and San Antonio, have publicly made a proclamation that they would abstain from prosecuting under the charge of abortion.

Who can sue under Texas abortion law

Almost anyone has a legal capacity to sue those who carry out or aid in performing abortions under the Texas abortion law.

Does the rapist have the right to sue a victim if she aborts a pregnancy

No, the rapist or perpetrator of sexual assault or incest does not have any right to sue the victim or any individual who provided or assisted the victim in receiving an abortion.

Can a legal sex partner sue under Texas abortion law

Yes, it is legally viable for a man who has impregnated a woman through legal, consensual sex to sue the person who provides or aids in abortion. 

Can multiple plaintiffs sue the same defendant for the same abortion in Texas

Yes, multiple plaintiffs can sue the same defendant, but only one of them can collect the damages and then divide the amount amongst the other plaintiffs because then it would be unfair upon the defendant to pay the relief amount more than once.

What is the time limit for the plaintiffs to sue someone for getting or aiding in the procedure of adoption under Texas abortion laws

Plaintiffs have a time limit of 4 years from the time an abortion occurred to file a lawsuit against a physician or any relative for performing or aiding in an abortion.

Does the Texas abortion law allow plaintiffs to sue anyone across the state

Yes, under Texas abortion laws, it is permitted for the plaintiff to sue anyone across the State.

Is it legal in Texas to make use of contraceptive methods for birth control

Birth control methods, including emergency contraceptives like Plan B or any other morning pill, are legally allowed under Texas abortion laws. These medications help prevent pregnancy within 72 hours after unprotected intercourse. It is important to note that Plan B pills are different from other types of  medication pills, and they must be used explicitly within the given time frame under the Texas abortion laws.

How do policies of a state influence access to abortion coverage within a state        

The limitation of abortion coverage in the healthcare insurance of all the states in the USA began right after Roe v. Wade decision was announced. Some states use their own funds to provide medical care for abortions under the direction of the courts. However, the Hyde Amendment of 1997 (a legislative provision barring the use of federal funds to pay for abortion except to save the life of a woman) banned federal funding for abortion, with exceptions to pregnancies that endanger the life of the woman or result from rape or incest.

Following the enactment of the Affordable Care Act (ACA) (2010), there was a renewed legislative effort aimed at limiting abortion care, particularly in private insurance plans. The Affordable Care Act maintained the constraints of the Hyde Amendment and additionally empowered states to restrict abortion coverage in Marketplace plans. In certain states, these restrictions went beyond the limitations set by the Hyde Amendment. Only a few states have introduced laws that include abortion coverage in both medical and private insurance plans.

Following the Supreme Court judgement overturning Roe v. Wade, 14 states have banned abortion and all the states have the power to frame their own policies. Each state will then come up with a different approach for accessing abortion coverage.

  • Medicaid Coverage Limitation (33 States & DC) – In these States, Medicaid coverage for abortion is in line with the Hyde Amendment, which allows it only in cases of rape, incest or life endangerment.
  • Private Insurance Coverage Limitation (11 States) – These States have a law prohibiting the inclusion of abortion coverage in private insurance policies sold in the State, with certain exceptions.  
  • State marketplace coverage Limitations (26 States) – Laws in these States prohibit abortion coverage in plans sold on state marketplaces, with specific exceptions outlined in the legislation.
  • No coverage Limitation (6 States) -These States do limit abortion coverage in private or state marketplace, and the state Medicaid programme permits the use of state funds (non-federal) to pay for abortion 
  • Requires Abortion Coverage in Medicaid (10 States)- These States mandate that all fully insured group and individual plans provide abortion coverage. Nine of these States do not impose any cost sharing for abortion. New Jersey allows cost sharing if similar services in the plan also allow cost sharing.

How Texas Heartbeat Act carries implications that go well beyond abortion care

Immunity from judicial review 

The Texas Heartbeat Act is concerning because it delegates enforcement powers not only to state officials but also to private individuals who have no connection with the pregnant women or their family members. These individuals have the right to take legal action against any person involved in the abortion procedure by incentivizing those third party individuals up to $10,000 who brought a suit against the people involved in the abortion procedure This unique procedural approach is a deliberate effort by the legislature to avoid judicial review of the Act’s constitutionality. Adding to the complexity of the federal law regarding whether a lawsuit can be brought against private persons. It was seen in the Supreme Court’s December 2021 ruling in Whole Woman’s Health v. Jackson, wherein it is clearly stated that abortion providers cannot file a suit against any state officials or state court clerks due to the novel procedure that is being set out. These technical entanglements effectively hamper the standard legal avenues for testing the law, preventing a constitutionally guaranteed right from being upheld when those responsible for its enforcement cannot be held accountable.

Moreover, the Act appears to disregard the usual legal Doctrine of Standing, which typically restricts who can bring a lawsuit under what circumstances. Typically, only those individuals can bring a suit before the judicial institution who have been inflicted with serious personal injury or any sort of harm. Contrary to that, this Act allows third party individuals to invade the rights of those who are involved in abortion procedures by giving them financial incentives for filing suits against abortion providers; this can be the case even if they have not been personally affected. This approach raises questions about fairness and adherence to established legal principles.

Socio-economic health

The main concern of this whole scenario is that it is a matter of choice and how it is impacting the lives of individuals, especially women. There are real world implications that get lost in the prevailing narrative. A financially weaker group of women will be the most affected by this ban. It is those women who have no means or very little means for accessing reproductive care and other related facilities who will be affected the most.

Based on the provisions of the Act, women seeking an abortion face significant challenges, as they must now travel out of states where abortion is legal for up to 24 weeks. Unfortunately, the financial burden associated with travel expenses gravely affects the poorest women. Historically, privileged women have had the resources to access the necessary reproductive care, showcasing the existing disparities, while the law is expected to safeguard individuals who face barriers to executing their constitutionally protected medical rights. The Texas Heartbeat Act lays a burden on individuals belonging to low income groups and  under-privileged socio-economic backgrounds.

Irrespective of the prevailing abortion discourse, the law should reflect the aid and protection of its vulnerable constituents rather than catering to political motivations. The Texas Heartbeat Act, by not accounting for mitigating circumstances, effectively denies these women the protection they need.

Maternal health

There are several reasons that make this Act distinct from the previous laws that were enacted with regard to abortion. One of the unique features of the Act is that when most women are unaware of their pregnancy report, which is during the six-week stage of pregnancy, the law strictly prohibits abortion. One of the exceptions that contributes to the abortion ban is “medical emergencies.” This implies that only if the mother faces a threat of death or a serious risk of substantial impairment will the law, in such a life-threatening circumstance, allow abortion under the current Texas abortion law.

There are multiple other reasons why women choose to undergo abortions; these may include selective reduction in gestation cases wherein the mother is pregnant with many children and must choose which pregnancy to carry forward with, or foetal reduction for twin- twin transfusion and many other reasons may be involved. 

The recently enacted laws show less regard for maternal medical conditions, failing to consider situations where continuing a pregnancy heightens the risk of heightened disregard even if it doesn’t meet the criteria for a medical  emergency. Conditions like cardiomyopathy, lupus, and nephrotic syndrome are some of the examples prevalent in a significant percentage of pregnancies and need to be taken into account. Critically, this Act is focused on the wellbeing of the foetus, overlooking the nuanced circumstances that often accompany the gestation process.

Post-enforcement nightmare

All the citizens have the right to challenge the law after it is enforced. However, this comes with its own challenges. This is crucial because it seems the main objective of the Texas abortion law is to  discourage individuals from challenging state officials, provided that they take the risk of going against the law and performing abortions after the law has been enforced. This requirement of waiting until the law is in effect acts as a substantial deterrent, as it forces individuals to take the risk of breaking the law before they can contest it in court. Technically, there is a way of challenging the Act in  court after its enforcement, but this raises fairness concerns. Drawing a parallel connection between Griswold v. Connecticut (1965), where doctors had to break state laws to challenge abortion restrictions and seek constitutional redress. The Texas Heartbeat Act intentionally introduces procedural hurdles to frustrate these rights. Such a mechanism is concerning as it sets precedents for other laws to practice similar procedural tactics to hinder constitutional rights in the future.

Fundamental rights denied

The Texas Heartbeat Act appears to be intentionally crafted to challenge the reproductive rights of women in Texas. The Act, by restricting abortion access, is seen as a direct challenge to the established legal framework that protected women’s reproductive autonomy. This implies deliberate effort to reshape the landscape of reproductive rights, marking a significant shift from the precedents set by Roe v. Wade.

It is a deliberate attempt that has been made to prevent people from challenging the law and to shield the lawmakers and state officials from being questioned by the judiciary. Critics argue that the restrictive abortion laws infringe upon a woman’s right to make personal medical decisions, limiting her access to a constitutionally protected choice. The laws are seen as imposing undue burdens on individuals seeking abortion services, which, in turn, impact their fundamental rights as recognised under the Constitution. This perspective is rooted in the belief that access to safe legal abortion is intertwined with broader notions of individual freedoms and rights.

Privacy rights of women

Enforcement of the Act by any third party scheme is problematic, as it sets out a dangerous precedent for other states to frame their own bills in connection with abortion care. Legislative members of the Republican Party of Florida have also drafted a Bill that is a replica of the aforementioned Act. The Act’s private enforcement mechanism violates constitutional rights and invades the privacy rights of women. The Act’s private enforcement mechanism violates a woman’s life by allowing private citizens or third party members to enforce the law. This promotes vigilantism by accepting suits filed by private persons who have no connection to the party being sued for indulging in the procedure of abortion. And the suit that is filed may extend its liability to anyone involved in the abortion. The impact of this Act will have a far-reaching effect on the rest of the country. Women will have to travel long distances; women will live in fear that their private rights are being violated by private citizens; and some may even forgo having an abortion to save the members of their family, friends, and those who are providing them professional assistance in terms of abortion care from being sued.

Conclusion

The Texas Heartbeat Act has received extensive media coverage since its implementation, and the contested stance of Texans on its impact is clearly evident. The data from the Texas Department of State Health Services indicates that the state saw a considerable reduction in the number of abortions performed. However, along with the decline in abortion rates, it was also seen that there was a rise in mail-order chemical abortions and a growing number of Texas women obtaining abortion services in other states.

Furthermore, Texas also witnessed a rise in birth rates, reaching an approximate figure of 5,000 births. This analysis suggests that nearly half of the unborn children deemed vulnerable to abortion were protected by the Texas Heartbeat Act.

This study marks one of the initial examinations of a state law implemented post  Roe v. Wade, providing substantial protection to the pre-born. It adds valuable research to the existing body of research, demonstrating the sensitivity of abortion rates to legal regulations and highlighting the life-saving impact of pro-life laws.   

Frequently Asked Questions (FAQs) 

Is consumption of Plan B pills legal in Texas?

Yes, it is legal to consume them. Nevertheless, the Texas abortion laws permit access to emergency contraceptives and birth control, such as Plan B or another morning-after pill, which is highly effective in preventing unplanned pregnancy if taken within 72 hours after unprotected sex. Also, one must know that there is a difference between Plan B pills and medication abortion pills.

Difference between medication abortion pills and Plan B pills?

Medication pills are taken orally after consulting a doctor; these pills include mifepristone and misoprostol. It leads to a heavy menstrual period, resulting in the end of pregnancy. Emergency contraception, also called morning after pills, works by preventing or delaying ovulation after unprotected sex. Plan- B pills are one such example of the same.

What is the law on ectopic pregnancy in Texas?

The Heartbeat Act that came into effect allows abortion in two cases; one of them is ectopic pregnancy. This describes a pregnancy that is not viable, either due to the embryo implanting outside the uterus or the diagnosis of preterm premature rupture of the membranes (PPROM). PPROM involves the situation where an individual’s amniotic sac ruptures before the fetus reaches a stage where it can survive outside the womb. Both conditions are life-threatening unless treated by an abortion and make live births impossible. 

Does the Texas law make exceptions resulting from rape or incest or to protect the life of the mother?

Under Texas abortion laws, there is no such exception for rape or incest. However, it does permit abortion in cases of medical emergency, but those instances are very narrowly designed and do not cover every instance in which women’s health would be at risk. It allows for abortion only if the pregnancy would cause serious harm that can be life-threatening for the mother’s life or could lead to impairment of a major bodily function.

References 

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