On September 1, almost all abortions became illegal in Texas.
State law signed by Governor Greg Abbott earlier this year prohibits 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 an almost complete ban on the procedure.
Earlier this week, abortion providers urged the Supreme Court to stop the ban from going into effect while the litigation continues. But the judges failed to intervene and made the six-week ban, which includes no exceptions for rape or incest cases, law in Texas.
So-called heartbeat bills like the one in Texas are not new. At least eight have been passed in recent years, with a number of states enacting the bans in 2019. But no bills went into effect until Texas law – they were challenged in court for being directed against Roe v. Running calf. the landmark 1973 decision that established the right to abortion in America.
But as Vox's Ian Millhiser explains, Texas law was intentionally written to prevent courts from blocking it before it went into effect. Rather than having state officials enforce the ban on abortion, the law essentially empowers individuals to sue abortion providers, according to the Texas Tribune. This unusual provision makes it difficult for abortion rights groups to sue state officials for blocking the law as they are not technically the ones to enforce it.
Regardless, legal challenges to Texan law remain and it could still be put down. But right now, Texas abortion providers are saying they will obey the law, and most Texans will likely have to travel out of state for an abortion – if they can afford it.
Ultimately, what is happening in Texas could anticipate the collapse of access to abortion in much of the country. If the six-week court ban persists, anti-abortion lawmakers elsewhere will likely pass their own versions, banning abortions after six weeks or even sooner. And later this year, the Supreme Court will hear Dobbs v Jackson Women’s Health Organization, a challenge to a 15-week abortion ban in Mississippi that could provide another opportunity to crush Roe against Wade.
Heartbeat bills forbid abortions very early in pregnancy
Heartbeat laws across the country are based on model laws from Faith2Action, which describe themselves 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 their website.
The model legislation states 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 to terminate the pregnancy unless this is necessary to save the mother's life or "to avert a serious risk of significant and irreversible impairment of an essential body function".
The bills generally don't include a specific gestation period for abortions, but reproductive rights groups say the bills are in line with a ban on abortion at around six weeks. Then, on a transvaginal ultrasound, a doctor can detect "a flicker in the heart's movement," said Catherine Romanos, an Ohio doctor who performs abortions and is a member of the Physicians for Reproductive Health group.
Some reproductive rights groups argue that the term "heartbeat" calculation is a misnomer because 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, called OB-GYN Jen Gunter wrote. Planned parenting refers to the bills as six-week bans.
According to Texas law, in order to have an abortion, patients would need to know their menstrual cycle well and immediately know that they are pregnant. You also need to be able to travel to a clinic and get the money for the procedure within the allotted time – The sixth week of pregnancy is shortly after most pregnant women miss their first period, which means that many people do not yet know they are pregnant at this point. The law contains an exception for medical emergencies, but not for pregnancy resulting from rape or incest.
The law also includes a provision that was not in previous bans that allows any private individual to sue an abortion provider or anyone who "helps" violate the ban, according to the Dallas Morning News. The obvious goal of this provision is to make it more difficult for abortion rights groups to challenge the law, since it is the responsibility of individuals, not the state, to enforce it.
“Planned Parenthood can't go to court and sue Attorney General (Ken) Paxton like they normally would for having no role in enforcing the law. They basically have to sit and wait to be sued, ”Josh Blackman, professor of constitutional law at the South Texas College of Law Houston, told the Texas Tribune.
The law also doesn't require a person to have a connection with the abortion provider to sue, which some may fear that clinics – and even individual patients – could be abused by endless lawsuits.
Reproductive rights groups have pledged to oppose the law in any case, and this week abortion providers filed an emergency motion asking the Supreme Court to stop the law from going into effect while legal challenges continued. However, the court did not respond to the request and let the ban go into effect on Wednesday morning.
The law is deeply of concern to abortion rights groups in Texas, who are now facing the prospect of evicting nearly all abortion seekers from the state for the trial. And it is a victory for a strategy that has seeped through the anti-abortion movement for years but has only recently started to work.
Bills have multiplied since 2016, but Texas law is the first to go into effect
The first bill based on the Faith2Action Model Law was tabled in Ohio in 2011. It was not passed. While similar laws were successfully passed in North Dakota and Arkansas in 2013, the tactic was not adopted by all anti-abortion groups. Ohio Right to Life was neutral on this 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 overthrow Roe against Wade, anti-abortion groups began to support more restrictive laws. In particular, "Heartbeat" laws began to spread to the state level in 2018, with Iowa passing its version in May of that year.
Similar laws were later passed in Kentucky, Mississippi, Louisiana, Ohio, Georgia, and elsewhere. With the exception of Texas, none of these are in effect, and most face legal challenges from reproductive rights groups.
However, some proponents of the bills are hoping for a judicial dispute. Some lawmakers who support the Heartbeat laws have stated that they see them as a potential challenge for Roe v. Wade see that along with the Planned Parenthood v. Casey of 1992 forbids states banning abortions before a fetus can survive outside the uterus (a point that is well 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 Shannon Lundgren, the Iowa MP who presided over the Iowa Act in 2018. "It is time for the Supreme Court to deal with the question of life."
The Supreme Court has not yet looked into a case involving a six-week ban. In May, however, the court announced it would hear Dobbs v Jackson Women's Health Organization, a case involving Mississippi law that bans most abortions after 15 weeks. This case will be the first abortion case fully resolved and argued in court since the confirmation of Judge Amy Coney Barrett, a Trump candidate who has spoken out loudly against abortion. And the case could provide an opportunity to rethink and possibly scrap profitability standards so that more states can ban abortions after six weeks or sooner.
Dobbs is expected to be decided next summer. But even before that, patients and providers in Texas will face an abortion ban that has not been seen in America since the days before Roe. And what's happening there could be a preview of what's coming nationwide as lawmakers enact ever stricter laws to curb abortion – and courts continue to allow them to do so.
Catherine Kim contributed to this article.