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Texas Heartbeat Act

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"Texas Abortion Statute" redirects here. For the law at issue in Roe v. Wade, see Texas abortion statutes (1961).
Texas Heartbeat Act
File:Texas heartbeat act.png
Texas Legislature
  • 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:
  • President of the [Texas] Senate
  • Speaker of the [Texas] House
  • [Texas] Secretary of State
  • Chief Clerk of the [Texas] House
  • [Texas] Governor
Introduced byBryan Hughes
Status: In force

The Texas Heartbeat Act is an act of the Texas Legislature. It was introduced as Senate Bill 8 (SB 8) and House Bill 1515 (HB 1515) on March 11, 2021, was signed into law on May 19, 2021, and went into effect on September 1, 2021. It is the first six-week abortion ban in the United States, and the first of its kind to rely on enforcement by private individuals through civil lawsuits, rather than by the state through criminal enforcement. The act establishes a system where members of the public can sue abortion providers for a minimum of US$10,000 in statutory damages.[1][2] The act is a de facto ban on most abortion in Texas.[3]

Background

Main article: Heartbeat bill

A different fetal heartbeat bill, HB 1500, 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.[4] The bill was not passed.[5][6] The bill was joint authored by Representatives Phil King, Dan Flynn, Tan Parker, and Rick Miller.[7] As of February 26, 2019, HB 1500 had 57 sponsors or cosponsors of the 150 members of the Texas House of Representatives.[8] Former State Senator Wendy Davis said HB 1500 was "the most dangerous I've ever seen."[9]

On March 11, 2021, the Texas Heartbeat Bill (SB8) was introduced to the Texas House of Representatives by Representative Shelby Slawson, and to the Texas Senate by Senator Bryan Hughes.[10] The bill was considered a legislative priority for Republican lawmakers,[11] and was included on Lieutenant Governor Dan Patrick's list of top priorities for the 2021 legislative session.[12] Governor Greg Abbott signed the bill into law on May 19, 2021.[13]

The novel legal invention of the bill, private civil enforcement, was engineered by Jonathan F. Mitchell, a former Stanford law professor, former clerk for Justice Antonin Scalia, solicitor general under Rick Perry and member of the Federalist Society. He proposed the idea in an 2018 Virginia Law Review article, The Writ-of-Erasure Fallacy,[14] then brought it to the attention to an East Texas antiabortion pastor in 2019 as part of his private practice.[15][16][17]

Another related act, the Human Life Protection Act (House Bill 1280), was passed at the same time. The bill immediately bans all abortions in Texas, without exemption, if the Roe v. Wade precedent is overturned by the Supreme Court.[18]

Act

The act allows any person to sue someone who provides abortion care once a signal of "cardiac activity" in an embryo can be detected via transvaginal ultrasound, which is usually possible beginning at around six weeks of pregnancy.[19] Though patients may not be sued, anybody who provides support can be sued, including doctors, staff members at clinics, counselors, lawyers, financiers, and those who provide transportation to an abortion clinic, including taxi drivers.[2] The act incentivizes this process by offering pay-outs of at least $10,000 in addition to court costs if a defendant is proven liable, and shields those who sue but lose from paying court costs.[19] Plaintiffs do not require any personal connection to a provider in order to commence a lawsuit.[20]

The law contains exceptions in the case of medical emergency but not for rape or incest.[20] On September 7, 2021, Governor Abbott alleged that the bill does not force raped women to carry pregnancies to term because it gives them "at least six weeks" and that the state would "eliminate all rapists".[21]

Significance

The act is the first six-week abortion ban to go into effect in the United States, even for a brief period of time.[2] 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.[2][22][23]

The law is unique in that it is specifically designed to place the burden of enforcement on the populace through civil courts, rather than on the state. This was engineered to deny abortion providers the opportunity to seek federal court injunctions against enforcement of an unconstitutional statute by state officials. Since the law cannot be enforced by state officials, but only by private individuals, there is no precise party to sue in seeking a protective injunction.[24] Due to this novel feature in the law, U.S. Supreme Court Justice Sonia Sotomayor 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."[1]

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.[25] However, many clinics reported an increase in patients at their clinics who had completed the 24-hour waiting period, and were desperate to have the procedure completed before the midnight deadline.[26]

The Center for Reproductive Rights filed an emergency application with the Supreme Court of the United States on August 30, 2021, seeking to block the Act from going into effect.[27] In a 5–4 vote,[28] the Supreme Court denied the motion late on September 1, 2021, nearly 24 hours after the Act had came into force.[1][29] The majority opinion on the motion in the case of Whole Woman's Health v. Jackson stressed that the denial of immediate relief did not preclude other legal challenges in lower federal or Texas state courts. Chief Justice John Roberts and the court's more liberal members, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, all wrote or joined dissents. In her dissenting opinion, Justice Sotomayor wrote that "presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand".[1]

In the underlying federal case, a group of abortion providers in Texas sued a state trial 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. The federal district judge rejected a motion to dismiss the case and scheduled a hearing on whether to block or uphold the law. The U.S. Court of Appeals for the Fifth Circuit in New Orleans canceled the hearing, which has not yet been held, while an appeal of the defendants, who have asserted immunity defenses, is pending.[1][30]

A Dallas attorney filed a lawsuit and 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.[31]

On September 3, 2021, a Travis County judge granted three Texas Planned Parenthood affiliates a temporary restraining order against Texas Right to Life. The ruling temporarily blocks the anti-abortion group from suing them under the act.[32]

On September 4, 2021, The Satanic Temple, a 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.[33]

On September 5, 2021, Laurence Tribe, American legal scholar and University Professor Emeritus of Constitutional Law at Harvard University, suggested ways for the United States Department of Justice to consider managing the Act: sections 241 or 242 of the federal criminal code makes it a crime to deprive individuals of any constitutional rights.[34] Laurence Tribe later, on September 7, 2021, also suggested using a "civil parallel of the Ku Klux Klan Act" to end the Texas Act.[35]

On September 6, 2021, United States Attorney General Merrick Garland announced that the Justice Department will protect abortion seekers under the Freedom of Access to Clinic Entrances Act.[36]

Reactions

A study produced by researchers at the University of Texas at Austin claimed that Senate Bill 8 would prohibit 80% of abortions in Texas, and disproportionately affect black women, lower-income women, and women who live far away from facilities which provide abortion care.[37]

The pro-life organization Texas Right to Life established a "whistleblower reporting system" that enabled residents to anonymously report suspected violators of the bill.[38] Their website has come under denial-of-service and satirical attacks featuring copypastas and eroticized fan-art of Shrek based on the prevalent internet meme,[39] as well as profuse non-pertinent and misleading information.[40][41] 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.[42] 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, and subsequently began redirecting to the Texas Right to Life organization's website.[43]

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.[44][45]

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.[46]

Protests

On the day the act went into effect, protesters rallied in the Texas state capital of Austin, Texas.[47] Women in Dallas protested while wearing costumes from The Handmaid's Tale, a dystopian novel about women living in a totalitarian theocracy.[48] Other small demonstrations were organized near city halls of other Texas towns.[49]

The day after the bill was enacted, the hashtag #texastaliban, a critical reference to the Taliban, trended on Twitter with over 50,000 tweets.[38]

Political reactions

President Joe Biden criticized the Act, describing it as "extreme" and saying it "blatantly violates the constitutional right established under Roe v. Wade".[50] Senator Elizabeth Warren said in a TV interview with MSNBC that it was time to "step up and codify Roe into federal law".[38] 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."[51]

Republican congressional representative Dan Crenshaw of Texas wrote of the bill, "God Bless Texas."[38]

See also

References

  1. ^ a b c d e Liptak, Adam; Tavernise, Sabrina (September 1, 2021). "After Silence From Supreme Court, Texas Clinics Confront Near-Total Abortion Ban". The New York Times. ISSN 1553-8095. Archived from the original on September 1, 2021. Retrieved September 1, 2021.
  2. ^ a b c d de Vogue, Ariane (September 1, 2021). "Texas 6-week abortion ban takes effect after Supreme Court inaction". CNN. Archived from the original on September 1, 2021. Retrieved September 1, 2021.
  3. ^ "Texas Planned Parenthoods Granted Restraining Order Against Anti-Abortion Group Over New Law". Houston Public Media. September 3, 2021.
  4. ^ "Texas Legislators File Radical 'Fetal Heartbeat' Bill To Ban Abortion After Just Six Weeks". Archived from the original on June 2, 2021. Retrieved June 2, 2021.
  5. ^ "Texas Legislature Online – 83(2) History for HB 59". Texas Legislature Online. Texas Legislature. Archived from the original on March 11, 2018. Retrieved December 7, 2016.
  6. ^ "Representative Cain Files The Texas Heartbeat Bill". house.texas.gov. Texas House of Representatives. Archived from the original on February 9, 2019. Retrieved February 9, 2019.
  7. ^ "Texas Legislature Online – 86 History for HB 1500". Texas Legislature. Archived from the original on February 9, 2019. Retrieved February 9, 2019.
  8. ^ Young, Stephen (February 26, 2019). "More Than a Third of the Texas House Is Backing a Stealth Abortion Ban". Dallas Observer. Archived from the original on February 26, 2019. Retrieved February 26, 2019. Fifty-seven of the 150 member body of the Texas House have signed on as authors, co-authors or sponsors of Cain's legislation.
  9. ^ Camarillo, Vicky (February 26, 2019). "The 'Fetal Heartbeat' Bill Has 57 Authors. All but 3 of them Are Men". Texas Observer. Archived from the original on February 26, 2019. Retrieved February 26, 2019. Former state Senator Wendy Davis called the bill "the most dangerous I've ever seen" in a call to action last week.
  10. ^ Bella, Timothy (May 19, 2021). "Texas governor signs abortion bill banning procedure as early as six weeks into pregnancy". The Washington Post. ISSN 2641-9599. Archived from the original on September 1, 2021. Retrieved September 1, 2021.
  11. ^ Najmabadi, Shannon (May 19, 2021). "Gov. Greg Abbott signs into law one of nation's strictest abortion measures, banning procedure as early as six weeks into a pregnancy". The Texas Tribune. ISSN 0897-2710. Archived from the original on September 1, 2021. Retrieved September 1, 2021.
  12. ^ Najmabadi, Shannon (March 18, 2021). "Texas lawmakers push bill to make it easier to sue abortion providers and harder for new anti-abortion laws to be blocked by courts". The Texas Tribune. ISSN 0897-2710. Archived from the original on September 1, 2021. Retrieved September 1, 2021.
  13. ^ Sandoval, Edgar; Montgomery, Dave (May 19, 2021). "Near-Complete Ban on Abortion Is Signed Into Law in Texas". The New York Times. San Antonio. ISSN 1553-8095. Archived from the original on September 1, 2021. Retrieved September 1, 2021.
  14. ^ "The Writ-Of-Erasure Fallacy".
  15. ^ Gershman, Jacob (September 4, 2021). "Behind Texas Abortion Law, an Attorney's Unusual Enforcement Idea". The Wall Street Journal. Retrieved September 5, 2021.
  16. ^ Gresko, Jessica; Paul J., Weber (September 4, 2021). "Origin story of the Texas law that could upend Roe v. Wade". Associated Press. Retrieved September 5, 2021.
  17. ^ Palmeri, Tara, Did Texas just reset the 2022 campaign?, Politico, September 5, 2021
  18. ^ "The Capitol Ledger, Volume 3 Issue 6" (PDF). Archived (PDF) from the original on September 3, 2021. Retrieved September 2, 2021.
  19. ^ a b Kaye, Julia; Hearron, Marc (July 19, 2021). "Even people who oppose abortion should fear Texas's new ban". The Washington Post. ISSN 2641-9599. Archived from the original on July 26, 2021. Retrieved September 1, 2021.
  20. ^ a b "What banning abortion at 6 weeks really means". May 19, 2021. Archived from the original on September 1, 2021. Retrieved September 2, 2021.
  21. ^ Cohen, Rebecca; Panetta, Grace (September 7, 2021). "Gov. Abbott said Texas will 'eliminate all rapists from the streets' so women don't have to worry about the new antiabortion law having no exception for rape". Business Insider. Retrieved September 8, 2021.{{cite web}}: CS1 maint: url-status (link)
  22. ^ Rabin, Roni Caryn (September 1, 2021). "Answers to Questions About the Texas Abortion Law". The New York Times. Retrieved September 5, 2021.
  23. ^ McCammon, Sarah. "What The Texas Abortion Ban Does — And What It Means For Other States". NPR.org. Retrieved September 5, 2021.
  24. ^ Manian, Maya (2007). "Privatizing Bans on Abortion: Eviscerating Constitutional Rights through Tort Remedies". Temple Law Review. 80: 123. Archived from the original on September 3, 2021. Retrieved September 3, 2021.
  25. ^ Oxner, Reese (September 1, 2021). "U.S. Supreme Court refuses to block Texas' six-week abortion ban". The Texas Tribune. Archived from the original on September 1, 2021. Retrieved September 2, 2021.
  26. ^ Goins-Phillips, Tre (September 3, 2021). "Texas Clinic Boasts of Performing Nearly 70 Abortions in 17 Hours Just Before Heartbeat Bill Takes Effect". CBN News. Retrieved September 3, 2021.{{cite web}}: CS1 maint: url-status (link)
  27. ^ Liptak, Adam (August 30, 2021). "Supreme Court Asked to Block Texas Law Banning Most Abortions". The New York Times. Washington, D.C. ISSN 1553-8095. Archived from the original on August 31, 2021. Retrieved September 1, 2021.
  28. ^ Thomson-DeVeaux, Amelia (September 2, 2021). "Why Texas's Abortion Law May Go Too Far For Most Americans". FiveThirtyEight. Retrieved September 5, 2021.
  29. ^ Zhang, Andrew (August 31, 2021). "666 new Texas laws go into effect Sept. 1. Here are some that might affect you". The Texas Tribune. ISSN 0897-2710. Archived from the original on September 1, 2021. Retrieved September 1, 2021.
  30. ^ "COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF — CLASS ACTION" (PDF). Archived (PDF) from the original on July 17, 2021. Retrieved September 2, 2021.
  31. ^ "Dallas Attorney Files Restraining Order Challenging Texas "Heartbeat" Abortion Bill". August 23, 2021. Archived from the original on August 27, 2021. Retrieved September 2, 2021.
  32. ^ DeBenedetto, Paul (September 3, 2021). "Texas Planned Parenthoods Granted Restraining Order Against Anti-Abortion Group Over New Law". KERA News.{{cite web}}: CS1 maint: url-status (link)
  33. ^ Nowlin, Sanford (September 4, 2021). "The Satanic Temple begins legal maneuver to skirt Texas' new abortion ban". San Antonio Current. Retrieved September 6, 2021.
  34. ^ Tribe, Laurence (September 5, 2021). "Opinion: What the Justice Department should do to stop the Texas abortion law". The Washington Post. Retrieved September 6, 2021.
  35. ^ Tribe, Laurence; Rosenberg, David (September 7, 2021). "How a Massachusetts case could end the Texas abortion law - We successfully invoked the civil parallel of the Ku Klux Klan Act to prevent the neighbor of a Harvard Square restaurant from wielding a state-conferred veto power over the issuance of any liquor license within a 500-foot radius". Boston Globe. Retrieved September 7, 2021.
  36. ^ Staff (September 6, 2021). "Justice Department will 'protect' abortion seekers in Texas". AP News. Retrieved September 6, 2021.
  37. ^ "Texas Senate Bill 8: Medical and Legal Implications" (PDF). Archived (PDF) from the original on July 14, 2021. Retrieved September 2, 2021.
  38. ^ a b c d "'We will keep fighting': Reaction to Supreme Court ruling that lets Texas heartbeat bill stand". September 2, 2021. Archived from the original on September 2, 2021. Retrieved September 2, 2021.
  39. ^ "TikTokers flood Texas abortion whistleblower site with Shrek memes, fake reports and porn". the Guardian. September 3, 2021. Retrieved September 6, 2021.
  40. ^ "'We will keep fighting': Reaction to Supreme Court ruling that lets Texas heartbeat bill stand". Dallas News. September 2, 2021. Archived from the original on September 2, 2021. Retrieved September 2, 2021.
  41. ^ "Anti-abortion website attacked on eve of Texas' new abortion law". spectrumlocalnews.com. Archived from the original on September 1, 2021. Retrieved September 2, 2021.
  42. ^ "GoDaddy is cutting off Texas Right to Life's abortion 'whistleblowing' website". September 3, 2021.
  43. ^ Kornfield, Meryl (September 6, 2021). "A website for 'whistleblowers' to expose Texas abortion providers was taken down — again". The Washington Post.
  44. ^ O'Kane, Sean (September 3, 2021). "Lyft and Uber to cover legal fees of drivers sued under Texas anti-abortion law". The Verge. Retrieved September 3, 2021.
  45. ^ Provenzano, Brianna (September 3, 2021). "Bumble and Match Have Created a Relief Fund to Help Cover Abortion Costs in Texas". Gizmodo. Retrieved September 3, 2021.
  46. ^ Prieb, Natalie (September 6, 2021). "Tech company CEO steps down after comments on Texas abortion law". The Hill. Retrieved September 7, 2021.
  47. ^ "Protesters rally against six-week Texas abortion ban". www.statesman.com. Archived from the original on September 2, 2021. Retrieved September 2, 2021.
  48. ^ "'Handmaid's Tale'-themed protest held in Dallas as new 'heartbeat' abortion law takes effect". wfaa.com. Archived from the original on September 2, 2021. Retrieved September 2, 2021.
  49. ^ "With Abortions On Hold, Some Texans Say It's Hard To Be Hopeful". KERA News. September 1, 2021. Retrieved September 3, 2021.
  50. ^ Barrón-López, Laura; Miranda Ollstein, Alice; Hooper, Kelly (September 1, 2021). "Biden: Texas abortion law 'blatantly violates' Roe precedent". Politico. Archived from the original on September 2, 2021. Retrieved September 1, 2021.
  51. ^ Nast, Condé (August 31, 2021). "Texas Just Banned Most Abortions". Teen Vogue. Retrieved September 6, 2021.
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