Texas governor Greg Abbott signed a bill on Wednesday banning abortions once a fetal heartbeat can be detected. That’s as early as the sixth week of pregnancy, before many people know they are pregnant, making the bill a de facto ban on almost all abortions.
The law includes an exception for medical emergencies, but no exceptions for cases of rape or incest.
“Our Creator gave us the right to life, and yet millions of children lose their right to life every year because of abortion,” Abbott said when the bill was signed. “The heartbeat bill is now law in the Lone Star State.”
So-called heartbeat bills are not new. At least eight have passed in recent years, and a number of states passed the bans in 2019. However, no heartbeat laws have come into effect – they faced legal challenges as they struck Roe v. Wade, the landmark 1973 decision, directly contradicting that established the right to an abortion in America.
However, the Texas bill includes a new provision that proponents believe could help evade legal challenges. It essentially empowers individuals to enforce the law by suing abortion providers, whether or not those citizens are associated with a patient, according to the Texas Tribune. Some believe this could help protect the law in court by removing the state from the equation, making it harder for abortion rights groups to sue state officials.
Meanwhile, Roe v. Wade himself endangered. The addition of Justice Amy Coney Barrett last year has been widely viewed as a guide to the overthrow of Roe. And this week the court announced it would hear Dobbs v Jackson Women’s Health Organization, a challenge to a 15-week abortion ban in Mississippi that could provide an opportunity to crush the 1973 decision. This could pave the way for states like Texas to ban abortion after six weeks – or even sooner.
Texas law, which comes into effect in September, will have no immediate impact on Texans’ ability to obtain an abortion. It is far from safe to be challenged in court. But it signals a renewed readiness by anti-abortion lawmakers to pass sweeping abortion restrictions, and may look to a time when those restrictions will be given the go-ahead by the Supreme Court.
“Heartbeat” bills prohibit abortion very early in pregnancy
Heartbeat bills across the country are based on model legislation authored by Faith2Action, which describes itself as “the largest network of family-friendly groups in the country”.
“The heartbeat is not the beginning of life, but it is the generally accepted indicator of life,” says a FAQ on the group’s website.
Model legislation says that if a patient is seeking an abortion, the doctor must first determine if the fetus has a heartbeat. If there is a heartbeat, the doctor is forbidden from performing an abortion unless there is a need to save the mother’s life or to “prevent a serious risk of significant and irreversible impairment of an important body function”.
The bills generally do not specify a specific gestation period for abortion, which has led to some debate. Reproductive rights groups say the bills represent a ban on abortion in about six weeks of pregnancy. At this point, a doctor can use a transvaginal ultrasound to determine “a flicker in the heart’s movement,” said Catherine Romanos, an Ohio doctor who performs abortions and is a member of the Doctors for Reproductive Health group.
Six weeks gestation is shortly after most pregnant people miss their first period, which means that many people do not know they are pregnant at that time.
Some reproductive rights groups argue that the term “heartbeat” is a misnomer as the fetus does not have a heart by the sixth week of pregnancy – the heart activity detectable at this point comes from tissue called the fetal pole, known as Gynecologist Jen Gunter wrote. Planned parenting refers to the bills as six-week bans.
Meanwhile, some proponents of the bills argue that they could allow an abortion a little later in pregnancy than six weeks. Jamieson Gordon, director of communications and marketing at Ohio Right to Life, told Vox earlier this year that an Ohio “heartbeat” bill that was incorporated into law in 2019 does not require transvaginal ultrasound. Some doctors, she said, might opt to have an abdominal ultrasound scan instead, and such a test may not detect a heartbeat until about eight to twelve weeks of pregnancy.
Ohio law leaves the exact requirements for determining the presence of a heartbeat to the Department of Health. But, Romanos said, the law, blocked in court, would likely ban almost all abortions in the state if it could go into effect.
“There will be a small minority of people who know their bodies really well” and immediately realize they are pregnant who can get an abortion under the new law, Romanos Vox said in 2019. You must be able to, too To travel to a clinic and collect the money for the procedure within the allotted time. The law provides an exception when a patient’s life is in danger, but not for a pregnancy resulting from rape or incest.
“It’s going to be really devastating for the people,” said Romanos. “It is patient abandonment.”
Texas law contains a provision that was not in previous bans that allows any individual to sue an abortion provider or anyone who “supports and encourages” a violation of the ban, according to the Dallas Morning News. Some believe this will make it more difficult for abortion rights groups to question the law, as it will be individuals, not the state, who will be tasked with enforcing it.
“Planned Parenthood cannot go to court and sue the Attorney General [Ken] Paxton as usual because he has no role in enforcing the law. You basically have to sit and wait to be sued, ”Josh Blackman, professor of constitutional law at the South Texas College of Law in Houston, told the Texas Tribune.
Nor does the law require a person to have any connection with the abortion provider to sue, which could create some fears that clinics – and even individual patients – could be abused by rounds of endless lawsuits.
However, reproductive rights groups have pledged to definitely oppose the law. Elisabeth Smith, chief state policy and advocacy attorney for the Center for Reproductive Rights, told the Tribune that the center “will not leave this six-week ban unchallenged.”
The bills have increased since 2016. So far none has come into force.
The first bill based on Faith2Action’s model legislation was introduced in Ohio in 2011. It was not passed. While similar laws were successfully passed in North Dakota and Arkansas in 2013, heartbeat laws were not passed by all anti-abortion groups. The right to life in Ohio was neutral on this issue until 2018, preferring to support less sweeping restrictions like a 20-week ban.
But after the election of President Trump, who pledged to appoint Supreme Court justices to help Roe v. To overthrow Wade, anti-abortion groups began supporting more restrictive laws. In particular, the “Heartbeat” bills began to proliferate at the state level in 2018, and Iowa passed its version in May of that year.
Similar bills were later passed in Kentucky, Mississippi, Louisiana, Ohio, Georgia, and elsewhere. None are in place and most face legal challenges from reproductive rights groups.
But a legal battle is exactly what some proponents of the bill are hoping for. Some lawmakers who support the Heartbeat Acts have stated that they pose potential challenges for Roe v. Wade, which along with the Planned Parenthood v. Casey of 1992 states forbid banning abortion before a fetus can survive outside of the womb (a point known as viability). A six-week ban is well before this limit.
Sponsors of some of such bans have specifically expressed their desire to challenge Roe. “Science and technology have advanced significantly since 1973,” said Iowa Representative Shannon Lundgren, the land manager of the Iowa Act in 2018. “It’s time for the Supreme Court to look into life.”
The Supreme Court has not yet taken up a case with a six-week ban. However, on Monday the court announced it would hear Dobbs v Jackson Women’s Health Organization, a case where Mississippi law bans most abortions after 15 weeks. This case, the first abortion case fully discussed and debated in the Court since Barrett’s confirmation, could provide an opportunity to reconsider viability standards and possibly abolish it so that states can ban abortion after six weeks or sooner.
Dobbs is unlikely to be ruled out against Jackson this year, and it is likely that Texan law will remain in legal limbo for the time being. However, some doctors say the heartbeat bills have already started affecting patients, although none have taken effect.
“I think people are already confused,” Romanos said in 2019. “I worry that there are patients who have heard of the bans and are now simply not seeking care that they would otherwise seek because they believe “Abortion is already illegal.”
Catherine Kim contributed to the coverage.