Texas Heartbeat Act
The Texas Heartbeat Act, Senate Bill 8, is an act of the Texas Legislature that bans abortion after the detection of embryonic or fetal cardiac activity, which normally occurs after about six weeks of pregnancy. The law took effect on September 1, 2021, after the U.S. Supreme Court denied a request for emergency relief from Texas abortion providers. It was the first time a state has successfully imposed a six-week abortion ban since Roe v. Wade, and the first abortion restriction to rely solely on enforcement by private individuals through civil lawsuits, rather than having state officials enforce the law with criminal or civil penalties. The act authorizes members of the public to sue anyone who performs or facilitates an illegal abortion for a minimum of $10,000 in statutory damages per abortion, plus court costs and attorneys' fees.
The Texas Heartbeat Act has been subjected to numerous lawsuits in state and federal court, but the statute has thus far withstood each of these court challenges and remains in effect. Lawsuits challenging the constitutionality of the Act have been filed by abortion providers and advocates, as well as the United States Department of Justice, but none of these lawsuits have been able to restore access to post-heartbeat abortions in Texas. The law has been exceedingly difficult to challenge in court because of its unique enforcement mechanism, which bars state officials from enforcing the law and instead authorizes private individuals to sue anyone who performs or assists a post-heartbeat abortion. Because the law is enforced by private citizens rather than government officials, abortion providers have been unable to obtain relief that will stop private lawsuits from being initiated against them. This produced an end-run around Roe v. Wade, which had established a federal constitutional right to abortion, because the threat of private civil-enforcement lawsuits forced abortion providers to comply with SB 8 despite its incompatibility with the Supreme Court's then-existing abortion pronouncements.
Even when courts have declared SB 8 unconstitutional, abortion providers have remained in compliance with the Act because it purports to subject individuals to private civil-enforcement lawsuits if they perform or assist a post-heartbeat abortion while an injunction that blocks the law's enforcement is in effect, if that injunction is later vacated or reversed on appeal. On October 6, 2021, federal district Judge Robert L. Pitman issued a preliminary injunction that blocked the state of Texas from enforcing the law, which remained in effect until the U.S. Court of Appeals for the Fifth Circuit issued a stay of Pitman's order two days later. Yet Pitman's order was unable to fully restore access to post-heartbeat abortions in Texas, even during the 48-hour window in which it was in effect, because abortion providers were unwilling to risk the civil liability that would be imposed if Pitman's injunction were stayed or overturned by a higher court. The U.S. Supreme Court declined to overturn the Fifth Circuit's stay of Pitman's ruling, so any post-heartbeat abortions performed in reliance on Pitman's injunction are subject to private civil-enforcement lawsuits under the terms of SB 8. This has made it difficult for abortion providers to resume services even when they obtain relief from a lower court that pronounces the statute unconstitutional, and it has further frustrated efforts to thwart the statute's enforcement in court.
The success of the Texas Heartbeat Act was a major blow to Roe v. Wade, as it provided a blueprint for states to outlaw abortion while insulating their laws from effective judicial review. This enabled the states to evade Roe v. Wade and other Supreme Court rulings that had declared abortion to be a constitutionally protected right. It also led other states to copy SB 8's enforcement mechanism and immunize their restrictive abortion laws from judicial review. On May 25, 2022, Oklahoma Governor Kevin Stitt signed HB 4327 into law, which outlaws abortion from the moment of fertilization. Because HB 4237, like the Texas Heartbeat Act, is enforced solely through civil lawsuits brought by private citizens, abortion providers were unable to stop the law in court and ceased performing abortions in Oklahoma, even though the Supreme Court had not yet overruled Roe v. Wade when the statute took effect. Idaho has also enacted a six-week abortion ban modeled after the Texas Heartbeat Act, which prevented abortion providers from challenging the constitutionality of the statute in federal court.
Background
A different six-week abortion ban, HB 59, was previously introduced in Texas by Representative Phil King on July 18, 2013. The bill did not pass. In 2019, another six-week abortion ban was introduced as HB 1500, which was jointly authored by Representatives Briscoe Cain, Phil King, the late Dan Flynn, Tan Parker, and Rick Miller. As of February 26, 2019, HB 1500 had 57 sponsors or cosponsors of the 150 members of the Texas House of Representatives. HB 1500, like HB 59, relied on conventional public enforcement by state officials, similar to laws that had been enacted in other states. HB 1500 did not pass.On March 11, 2021, the Texas Heartbeat Bill was introduced by Senator Bryan Hughes. A companion bill was filed by Representative Shelby Slawson a day later in the Texas House of Representatives. Unlike HB 1500, SB 8 and HB 1515 contained a novel enforcement mechanism designed to shield the law from pre-enforcement judicial review. Each of the bills explicitly forbade state officials to enforce the law in any way, and instead authorized private individuals to sue those who perform or assist abortions after cardiac activity had been detected for $10,000 per abortion, plus costs and attorneys' fees. In structuring the law this way, the authors sought to shield it from judicial review in federal court, because lawsuits challenging the constitutionality of a state statute must be brought against state officials charged with enforcing the disputed law, rather than against the state itself. And without a state official who enforces the law, there is no one for abortion providers to sue pre-enforcement; they must instead wait to be sued in state court by a private individual and assert their constitutional claims as a defense to liability in those private civil-enforcement proceedings.
The private civil-enforcement feature of the law was engineered by former Stanford law professor Jonathan F. Mitchell. The idea was based on his 2018 Virginia Law Review article, "The Writ-of-Erasure Fallacy", which noted that laws enforced solely by private citizens are nearly impossible to challenge in pre-enforcement lawsuits. He later brought this idea to the attention of Mark Lee Dickson, an East Texas anti-abortion pastor, in 2019. Dickson was able to persuade the city council of Waskom, Texas, to enact an ordinance that outlawed abortion within city limits through the private civil-enforcement mechanism proposed by Mitchell, although it was mostly a symbolic move as the town had no abortion providers. Dickson then championed for similar laws to be passed in other towns and cities in Texas over the following years, including Lubbock, where a Planned Parenthood facility halted abortion procedures following passage of the local law. Mitchell helped Hughes draft the bill for the state based on the municipal ordinances he had written as a means of avoiding pre-enforcement judicial scrutiny, primarily by taking state officials out of enforcing the abortion ban and leaving enforcement entirely in the hands of private individuals.
The bill was a legislative priority of Republican lawmakers for the 2021 regular session, denoted 87. The Senate version was approved by both houses of the bicameral Texas legislature after the Senate concurred with House amendments. Texas governor Greg Abbott signed the bill on May 19, 2021, and it took effect on September 1, 2021.
Provisions
The Texas Heartbeat Act contains twelve sections. Although the Act is best known for its provisions that outlaw abortion after cardiac activity has been detected, and that authorize private lawsuits against those who violate the Act, the Act includes other provisions that further restrict abortion and deter litigants from challenging abortion laws in court. It is regarded as one of the most aggressive and far-reaching pieces of anti-abortion legislation that has ever been enacted.Section 2
Section 2 of the Act declares that Texas has never repealed, either expressly or by implication, its pre–Roe v. Wade statutes that outlaw and criminalize abortion unless the mother's life is in danger. The Texas pre-Roe abortion laws are still codified at articles 4512.1 through 4512.6 of the Revised Civil Statutes, and they impose felony criminal liability on anyone who performs an elective abortion, as well as anyone who "furnishes the means for procuring an abortion knowing the purpose intended". The punishment is two to five years' imprisonment for each abortion performed or facilitated, and the statute of limitations is three years.By declaring that the state's pre-Roe criminal abortion have never been repealed, section 2 overrules McCorvey v. Hill, a 2004 decision from the U.S. Court of Appeals for the Fifth Circuit, which held that Texas had implicitly repealed its pre-Roe criminal abortion statutes by enacting subsequent legislation that regulates the abortion procedure. It also ensures that all abortions performed in Texas—including abortions that occur before cardiac activity is detectable—are defined and regarded as criminal acts under Texas law, even though prosecutors in Texas cannot indict or charge abortion providers for their violations of these statutes until Roe v. Wade is overruled.
The enactment of section 2 has led Texas officials to threaten abortion funds and their donors with criminal prosecution under the state's pre-Roe abortion statutes. On March 18, 2022, Representative Briscoe Cain sent cease-and-desist letters to every abortion fund in Texas, demanding that they immediately stop paying for elective abortions performed in Texas. Cain warned that these abortion funds were violating the state's unrepealed pre-Roe abortion statutes by "furnishing the means for procuring an abortion knowing the purpose intended," and that every single one their employees, volunteers, and donors could face criminal prosecution for violating the state's pre-Roe laws. Cain pointed out that neither Roe v. Wade nor any other decision of the Supreme Court has ever created or recognized a constitutional right to pay for another person's abortion, and that Roe protects only abortion providers and their patients from prosecution under the state's pre-Roe criminal abortion prohibitions. Abortion funds in Texas have refused to halt their activities in response to Cain's letter, and Cain has promised to introduce legislation that will ensure that Texas abortion funds and their donors are prosecuted for each abortion that they have assisted in violation of the state's pre-Roe abortion laws.