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What Texas’ new ‘Heartbeat Bill’ can tell us about civil justice and the future of abortion rights in America

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Texas has become the 8th state to sign their version of a ‘heartbeat bill’ into law, banning abortions just six weeks after conception – well before most women even know that they are pregnant. However, the statute is the first of its kind to rely on civil rather than criminal enforcement. The bill will be enforced exclusively through the private citizens of Texas as opposed to the government.  

The new law provides conservative lawmakers everything they’ve ever wanted: the ability to de facto ban abortion, with none of the de jure risks.  

The Texas bill (SB, 8) requires that doctors check for a fetal heartbeat before performing an abortion, cancelling the procedure if one is detected.  

The law makes no exceptions for cases involving incest or rape. 

Earlier this week, abortion providers asked the Republican-dominated Supreme Court to prevent the ban from going into effect. The justices voted 5 to 4 against blocking the implementation of the bill. Less than a day later, they handed down a brief order, formally holding that the law may take effect. Notably, the vote to do this does not decide if the law is constitutional or not, rather that it can be implemented before the full case is heard in court.  

Though twelve other states have tried to ban abortion after passing their own versions of ‘heartbeat bills,’ their efforts were challenged by abortion rights groups and blocked by federal courts declaring that such laws are unconstitutional under the precedent set by Roe v. Wade in 1973.  

This means that until the Texas bill, no ‘heartbeat bills’ had actually been put into effect.  

What makes Texas’ ‘heartbeat bill’ unique is its inability to be blocked by courts due to its dependence on civil justice.  

A crucial element of the legislation’s enforcement is that the burden of application lies entirely with the citizens of Texas. The bill is unique in that it features a provision opening up anyone who assisted a woman in accessing her abortion to legal liability. Anyone who successfully sues an abortion provider is entitled to a minimum of $10,000. Plaintiffs do not need to know or have any association with the person they file a case against. To facilitate this, Texas Right to Life has established a ‘whistleblowing’ website whereby citizens can submit anonymous tips to the group regarding anyone they believe to be in violation of the new law. This stretches as far as providing transportation, medical contacts, or financial aid. It states that anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise,” is liable for prosecution after the onset of a fetal heartbeat. 

By empowering private citizens to enforce the abortion ban as opposed to state officials, the new bill is intentionally immune to judicial interference, as there is no clear organisation that can be sued to block the law. Thus, it becomes harder for abortion-rights activists to sue state officials as technically they aren’t the ones who are enforcing the law.  

To appreciate the impact the new legislation will have on the women of Texas it is important to consider how one would go about getting an abortion in accordance with the bill.  

To obtain an abortion in Texas, a woman would have to know their menstrual cycle well enough to immediately recognise early signs of pregnancy in order to be eligible for the procedure. This doesn’t take into account many women with irregular cycles or those who have conceived whilst taking contraception. Further to this, the pregnant women would need to be financially able to afford the procedure and other expenses involved. Considering nearly half of abortion seekers live below the poverty line, gathering the funds within the six weeks is not only unrealistic but also legally contentious, given that according to the Constitution of the United States a pregnant woman should have the ‘liberty to choose to have an abortion without excessive government restriction’. (Wade, 410 U.S. 113)  

According to the abortion providers that are suing to block the legislation, around 85 percent of abortions in Texas take place after the sixth week of pregnancy. Most women are already close to six weeks pregnant just shortly after they miss their first period. Under the new law, access to legal, safe help within the given timeframe is unfeasible and impracticable.  

The governor’s signature follows quickly after the U.S. Supreme Court announced that it would hear Dobbs v. Jackson Women’s Health Organisation, a case concerning a Mississippi law that would ban abortions after 15 weeks, leading to further curtailments of abortion rights. This will be the first major abortion case since the courts newly expanded conservative majority and an opportunity to further challenge Roe v. Wade.    

But what does this mean for abortion laws in other states?  

Ultimately, what is happening in Texas could foreshadow the collapse of abortion access throughout much of the country. If the federal courts ultimately allow this law to stand, the likelihood is that many southern, Republican states could follow suit by attempting to pass a similar style of legislation. 

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