The End of Abortion Rights: Texas Law Provides Grim Glimpse of Future

Posted in: Reproductive Law

On September 1, 2021, the law known as “SB 8” took effect in Texas. It bans most abortions, including those obviously protected by the federal Constitution, and is the first pre-viability ban to take effect in this country since the Supreme Court held that women have constitutionally protected abortion rights.

Texas abortion law was already restrictive. It banned abortion twenty weeks after fertilization, even though that is before viability. It requires women to have an ultrasound, whether medically indicated or not, and to have the images described to her by the healthcare provider. It requires the provider to make any cardiac activity audible for the woman, whether she seeks to hear it or not. It requires two appointments with a 24-hour waiting period in between (unless the woman lives more than 100 miles from the nearest abortion provider). It requires the doctor to conduct “informed consent” counseling in which, more or less, the patient is “informed” that the state does not “consent” to her choice. The doctor must disseminate an official state pamphlet, ironically entitled A Woman’s Right to Know, which is chock full of misleading and incorrect information about the risks of abortion. It requires the same doctor to conduct both the counseling and the termination, making scheduling even more difficult. It prevents the use of telemedicine for abortion counseling as well as for prescribing the pills for medication abortion. It prohibits public funding for abortion and private insurance coverage (other than through a rider in which the insurance costs more than the medical care). Texas passed even more restrictions on abortion providers, which were struck down as unconstitutional by the Supreme Court in 2016 in Whole Woman’s Health v. Hellerstedt.

The GOP-controlled legislature in Texas did not give up. It went right back to its business of passing unconstitutional restrictions on abortion. But this time, it got more extreme—and more creative. It is still unconstitutional, but unless and until a court blocks the law, it will be in effect. It is thus important to understand its devious and dangerous features. The FAQs that follow address the questions I am most often asked about SB 8.

Which abortions are covered by the ban?

The law bans a physician from providing an abortion at any point after cardiac activity is detected in the fetus (or if the provider has failed to try to detect one using conventional methods). This type of cardiac activity is usually present around six weeks after the first day after the woman’s last menstrual period. There is very little variability in embryonic development at this stage, so although the law requires the physician to test for cardiac activity in each patient and record the results, the reality is that an abortion will almost never be permitted after the end of the sixth week since the first day of the woman’s last period.

So the fetus has a heartbeat at around six weeks?

First things first. The “fetus” is an embryo, per the medical classification system, until the eighth week. Second, the embryo does not have a heart—and thus does not have a heartbeat. It has cells that might someday develop into a heart—if the pregnancy is viable, a determination that cannot be made at this point—and those cells “flutter” only because they have become capable of communicating electrical signals. Third, the flutter is inaudible, even with a stethoscope set right over a woman’s uterus. Rather, the flutter can be seen (but not heard) only with an invasive, vaginal ultrasound.

But isn’t the fluttering cardiac pole indicative of viability?

Um no. There is no such thing as a viable embryo. Viability is achieved at the point when a fetus can be reasonably expected to live outside the woman’s body. Although medical and scientific developments make viability a moving target, in the United States, fetuses are deemed viable after 24 weeks gestation due to a combination of biological and technological factors—almost four full months after the abortion cut-off in SB 8.

Texas Governor Greg Abbott says that pregnant women have six weeks to decide whether to seek an abortion. Is that true?

Not even close. Embryonic cardiac activity is most likely to be detectable six weeks after the first day of a woman’s last menstrual period. But she is not pregnant on that day – indeed, she might not even have sex for another two weeks. A “textbook” menstrual cycle resulting in pregnancy would look like this:

  • Day 1: menstrual period starts
  • Days 14-17: ovulation occurs
  • Days 15-18: egg is fertilized by sperm (either newly introduced or lying in wait) within 12-24 hours of ovulation
  • Days 24-27: fertilized egg, after long 9-day journey down fallopian tube, implants in lining of the uterus
  • Days 28-31: next period is “missed” and pregnancy is likely detectable by home or other pregnancy test
  • Day 42: likely detection through vaginal ultrasound of inaudible embryonic cardiac activity

Thus, a woman with a regular, predictable menstrual cycle who buys and takes a pregnancy test on the first possible day has between 11 and 14 days to decide to terminate, make two clinic appointments with at least 24-hours in between (per Texas’s other restrictive abortion laws), and complete the procedure.

Lots of pregnant women will still be able to get abortions in Texas, right?

Nope. Experts estimate that 85-90% of the abortions usually sought in Texas will not be permitted under SB 8. Although the anti-abortion movement has been successful in perpetuating the lie that second- and third-trimester abortions are commonplace, they are quite rare. Texas’s own data makes this eminently clear. In 2020, only 8 abortions were performed on Texas residents in the state of Texas after the 20th week post-fertilization (22 weeks after the first day of the last menstrual period). The vast majority of abortions take place in the first trimester—of 53,949 abortions that year, only 1,514 (less than 3%) took place between the 15th and 20th weeks after fertilization. However, most of those occurred after the SB 8 cut-off. Only a small fraction of the women who will seek abortion in Texas will be successful without leaving the state.

But a pregnant woman could still decide to terminate in the event of a severe fetal abnormality, right?

No. Under Texas law as it existed before September 1, 2021, there was an exception for cases of severe fetal abnormality such that there was no gestational age limit for abortion. Under SB 8, however, there is no exception for severe fetal abnormality, even for those conditions deemed “incompatible with life.” Moreover, there are no prenatal tests capable of detecting fetal abnormality, chromosomal or otherwise, before the cut-off for legal abortion under SB 8.

Well, at least there must be an exception for pregnancy resulting from rape or incest?

No. Under SB 8, the only exception to the cut-off is for cases of “medical emergency,” in which the continuation of pregnancy threatens the life of the pregnant woman or poses a substantial risk of impairment to a major bodily function. The circumstances of conception are irrelevant, as is the condition or viability of the fetus.

Doesn’t it seem cruel to force a woman to give birth to her rapist’s baby?

Yes. But Texas has a plan! When asked about this situation, Governor Greg Abbott said his administration will “eliminate rape.” The citizens of Texas are anxiously awaiting the details of this ambitious policy initiative and wondering why it would not have been rolled out sooner.

Does the law make clear when providers will be protected by the “medical emergency” exception?

No. And as Dr. Ghazaleh Moayedi explains in a recent guest essay for the New York Times, every doctor and hospital will make their own subjective determinations about when an abortion can be legally performed, erring, as the medical community often does, on the side of minimizing liability. The law endorses a dangerous game of chicken in which doctors and hospitals will want her to sit tight and wait for her medical condition to become serious enough to kill her—and then hope they can terminate in time to save her life. The threat of enormous liability is going to mean that close calls and even ties go to the fetus. Women be damned. As Dr. Moayedi wrote, “I can think of no other health care in which we would wait for someone to worsen nearly to the point of death before we offered intervention. It’s just unconscionable.”

What about minors?

SB 8 subjects pregnant minors to a special kind of hell. Texas does not allow pregnant minors to consent to their own abortion care (nor to their own contraceptive care, in a related point). In order to obtain an abortion, a pregnant minor must either prove a parent has consented or go to court to seek a judicial bypass. Under the Supreme Court’s abortion precedents, pregnant minors are also protected by the constitutional right to seek a previability abortion. But states are permitted to balance that right against the parent’s right to make healthcare decisions for a child and against the likelihood that minors lack the same maturity to make informed decisions possessed by adult women. If a state chooses to mandate parental involvement in abortion, the state must also maintain a judicial bypass procedure that permits the minor to bypass the parent and seek permission directly from a judge to consent to her own abortion care. This, however, takes time. Between the time constraints of SB 8 and the time constraints built into the judicial bypass system (some inevitable, some deliberately imposed by the legislature to make abortion burdensome for minors), it will almost never be the case, as I wrote elsewhere, that a minor can successfully obtain a bypass and an abortion in time. A state that already boasts the highest repeat teen birth rate in the nation, one of the highest teen pregnancy rates in the nation, and one of the highest teen STI rates in the nation, can add more forced births by minors to its dashboard.

Will a doctor who performs an abortion after the cut-off point be arrested?

No. In order to evade judicial review, the legislature drafted the law in an unusual and unprecedented way. Rather than give the government the power to enforce the law through criminal or civil liability, it deputizes every private individual to do so themselves. The law creates a private right of action for any person to sue a provider who performs an abortion in violation of the statute and also to sue any other person who “abets” the abortion, such as the receptionist, nurse, or office manager at the clinic; the boyfriend, husband, or friend who drove the patient to the clinic; the social worker, clergyperson, or therapist who discussed options with the patient; the abortion fund that helped pay for the procedure; the doctor who referred her to the abortion provider; and anyone else who had the good conscience or misfortune to provide support to a pregnant person deciding whether to or planning to terminate a pregnancy.

There are many unusual features of this private right of action but the most striking is that it does not require the plaintiff to have suffered any harm or injury. In federal court, a plaintiff must have “standing” to bring a claim—a requirement that derives from the “case or controversy” language in the constitution that makes federal courts available only for the resolution of actual disputes. One cannot sue to vindicate their opinions or displeasure at something the government or a private individual has done; a federal plaintiff must have been harmed in some way that can be redressed through the lawsuit. Although the federal Constitution in this respect is not binding on state courts, Texas law has also treated standing as a prerequisite to suit. But SB 8 creates a cause of action that expressly contains no requirement of standing – any person, regardless of whether they have any stake in the outcome of the case, can file a lawsuit against the provider or the abettors. And a person can be liable as an abettor even if they had no idea that their conduct might contribute to a patient’s undergoing an abortion in violation of the law.

Wait, doesn’t that mean a disbarred felon/lawyer from Arkansas could file the first suit against a Texas abortion provider?

Why yes, and that is exactly what has happened. Just one day after Dr. Alan Braid published a column in the Washington Post in which he admitted to having performed an abortion in violation of SB 8 (after the law took effect), there were two lawsuits filed against him. One was filed by a disbarred lawyer in Arkansas, Oscar Stilley, who said he is just curious whether SB 8 is valid or not. By filing a lawsuit against Dr. Braid, in which the doctor will most likely raise the unconstitutionality of the law as a defense, Stilley might just have his curiosity satisfied. The other lawsuit was filed by a man in Illinois who says he is pro-choice. Neither plaintiff has any connection to Dr. Braid, the patient for whom he performed the abortion, or the state of Texas for that matter. That is the nonsensical scheme endorsed by the Texas legislature through SB 8.

What does a plaintiff stand to gain by filing a lawsuit?

The same thing bounty hunters always stand to gain: money. SB 8 provides that a plaintiff who proves an abortion took place in violation of SB 8 must be awarded at least $10,000 in damages and can be awarded attorneys’ fees. (And if the defendant wins, the court is not allowed to impose an award of attorneys’ fees on the plaintiff.) Moreover, the law imposes special venue rules so the plaintiff can sue in their own locale—even if the defendant is located and the abortion occurred hundreds of miles away—as long as the plaintiff is a Texas resident.

Won’t everyone in the world now file their own lawsuit against Dr. Braid?

Maybe, but only the first winner can collect damages. Although Dr. Braid could well spend the rest of his life defending himself against such lawsuits, if one court orders him to pay damages, he can raise that award as an affirmative defense in every other case. But they can search for other possible defendants who abetted the same abortion—there is no limit on the number of damage awards for a single abortion, or the number of plaintiffs, as long as each defendant pays only once.

Wow, it sounds like there will be thousands of lawsuits under SB 8?

No, there will be very few. The legislators’ designed the scheme to govern through fear and incalculable risk. By deputizing every single person to sue over post-ban abortions, the legislature has ensured that virtually no such abortions will take place. The risk to providers as well as the risk to the entire women’s health and reproductive justice community is too large and unwieldy to be navigated. This is exactly what the Texas GOP intended.

But isn’t it unconstitutional to design a scheme that prevents almost all pregnant people from exercising a constitutional right?

Yes. Over the course of almost fifty years, the Supreme Court has recognized that the Fourteenth Amendment’s Due Process Clause protects a right of privacy that extends to decisions about whether to bear or beget a child. Under those precedents, people have a constitutional right to obtain a pre-viability abortion without undue burden from the government. This core right is so clear and so undeniable that federal courts across the country—including in the Bible Belt south—have enjoined every single pre-viability abortion ban other than this one. Texas stands alone in being able to enforce an unconstitutional ban on abortion—and it is one of the most extreme bans ever passed by any state legislature.

If this law is unconstitutional, then why was it allowed to take effect?

Good question. There are two lawsuits in federal court—one brought by abortion providers and advocates and another brought by the U.S. government. In the former case, the trial court would have blocked the law pending a full trial on the merits. But first U.S. Court of Appeals for the Fifth Circuit and then U.S. Supreme Court ruled to vacate that stay and to allow the law to take effect on September 1. Wearing their political hats rather than their judicial ones, those judges were the last line of defense for pregnant women in Texas. They abdicated their responsibility in a way that will cause harm—even death—on tens of thousands of citizens. Those lawsuits are still pending, as are the two new private lawsuits filed against Dr. Braid, and a handful of other lawsuits testing the validity of SB 8. Perhaps one of those lawsuits will lead to a ruling that should have come before midnight on September 1—that the Texas GOP has run afoul of the Constitution by scheming to scare an entire area of medicine out of existence—and depriving its citizens of their cherished and important constitutional rights.

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