By: Sienna Lovelock-Burtt
Introduced as Senate Bill 8, the so-called ‘Heartbeat Law’ as it is known, was signed into law by Texas Governor Greg Abbott on May 15. It went into effect on 21 September 2021. The Bill makes abortion illegal once a fetal heartbeat can be detected - which is usually at around 6 weeks into a pregnancy – even if there are challenging medical problems.
Before this law, the 1973 Ruling of the U.S. Supreme Court in Roe vs. Wade was the historical precedent for abortion law. The verdict was that the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restrictions, effectively legalizing the procedure across the United States. The court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment to the Constitution. Prior to Roe v. Wade, abortion had been illegal throughout much of the country since the late 19th century.
However, Roe v. Wade ruling has proved controversial, and Americans remain divided in their support for a woman’s right to choose an abortion. Since the 1973 ruling, many states have imposed restrictions on abortion rights.
Why is the new law significant?
The Texas Heartbeat bill clearly violates the precedent established in Roe v Wade and has not surprisingly attracted huge controversy.
At the end of October, after an appeal, the Supreme Court refused to overturn the Heartbeat bill, effectively changing the precedent.
The Texas Heartbeat Act is different from other anti-abortion bills in some key respects.
On the legal front, it allows any person to sue someone who performs or induces abortion, or aids and abets one, once ‘cardiac activity’ in an embryo can be detected via transvaginal ultrasound which is usually possible beginning at around six weeks of pregnancy.
The act defines an ‘unborn child’ as a human fetus or embryo at any stage of gestation.
An abortion patient may not be named as a defendant. However, anyone who provides support for an unlawful abortion can be sued in addition to the physician performing the procedure. That includes staff members at clinics, counselors, lawyers, financiers, and those who provide transportation to an abortion clinic, including drivers of a taxi or ride-hailing companies.
The act promotes private enforcement by authorizing ‘statutory damages’ of at least $10,000 in addition to court costs and attorney #39;s fees if a defendant is proven liable. Plaintiffs are not required to have a personal connection to the patient or abortion provider to bring a lawsuit.
On the medical front, the Law has raised some questions. Some have suggested that the ‘Heartbeat Law’ is incorrectly named. Several medical and reproductive health experts have argued that the embryo doesn’t even have a developed heart at 6 weeks gestation. In fact, at 6 weeks gestation, most women do not even know they are pregnant. Six weeks is one missed period – relatively common with stress, outside factors, or even a change in diet.
Next Steps – so what next?
The law first went into effect in September when the Supreme Court denied the petition to block its enforcement. A federal judge ordered Texas to suspend its abortion law, calling it an ‘offensive deprivation’ of a constitutional right. Two days later, it was reinstated by an appeals court, later upheld by the 5th U.S. Circuit Court of Appeals.
With Thanksgiving approaching, it is unclear whether the Supreme Court will decide on the Texas cases before they hear more arguments. A ruling was due on the 21 st of November, but so far, the Supreme Court has not been forthcoming. A case over Mississippi’s 15-week abortion ban is set to be heard on 1 December 2021.
Several other states have dormant abortion laws, that now may come into action, including Arkansas, Louisiana, Kentucky, and many others.
Given the highly charged, political nature of the issue – a women’s right to choose - we can expect to see legal action continue for the foreseeable future.
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