10 Facts You Need to Know About the New Texas Abortion Law (SB-8) “The Texas Heartbeat Act”:

1. Under current Federal law, a State may not restrict the right of a woman to secure an abortion during the first trimester of pregnancy.  In Roe v Wade, 410 U.S. 113 (1973), an all-male Supreme Court struck down a Texas statute banning and criminalizing all abortions unless there was a medical emergency.  In Roe v Wade the Supreme Court held that during the first trimester of pregnancy, a woman has a constitutional right to obtain an abortion implicit in the due process clause of the 14^th Amendment of the Constitution.  Only when a fetus is “viable” in the third trimester, the Supreme Court held, does a State have the legal authority to regulate abortion “in promoting its interest in the potentiality of human life”.

2. The new Texas law begins by stating: “The legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v Wade, 410 U.S. 113 (1973), that prohibit and criminalize abortion unless the mother’s life in in danger”.

3. The new law mandates that prior to an abortion being performed in Texas, the abortion provider must first determine if a fetal heartbeat can be detected.  If a fetal heartbeat is detected, usually by 6 weeks, the abortion may not be legally performed in the State of Texas.

4. Abortion providers, or anyone who “aids or abets” an abortion, including a person who pays for the abortion or an insurance provider who reimburses the expense, is civilly liable under the statute.

5. An exception under the statute exists for victims of rape or incest or where the life of the mother is in danger. In these instances, both the abortion provider and the mother must give sworn statements and maintain medical records supporting these exemptions.

6. The new law provides that any private citizen may sue the abortion provider or anyone who aids or abets in the performance of an abortion after a fetal heartbeat is detected.  The statute of limitations to sue is 4 years from the date of the abortion.  The prevailing party shall be awarded “not less than” $10,000 plus the Plaintiff’s costs and attorney’s fees.  Enforcement of the new law is solely through litigation commenced by a private citizen as opposed to a lawsuit brought by the State or local government.

7. Abortion providers, unable to bring suit against the State seeking to challenge the constitutionality of the statute, commenced a lawsuit against a Texas judge in order to try to secure a stay (an injunction) of enforcement of the law. There is no question that the Texas statute, by creating the private enforcement mechanism, was designed to make it more difficult to secure an injunction against the law going into effect.

8. On September 1, 2021 the U.S. Supreme Court, in a 5-4 decision, declined to issue an injunction in the case Whole Women’s Health et al v Austin Reeve Jackson, Judge (594 U.S. __ 2021).  The reasoning given by those five judges (Judges Amy Coney Barrett, Brett Kavanaugh, Clarence Thomas, Samuel Alito and Neil Gorsuch), three of whom were appointed by former President Trump, was that the procedural posture of the case, suing a Judge who may or may not seek to enforce the law, was “complex” and entailed “novel antecedent procedural questions” and that it was unclear, under existing precedent, whether the Court “can issue an injunction against state judges asked to decide a lawsuit under Texas’s law”.

9. The four remaining justices (Judges John Roberts, Stephen Breyer, Sonia Sotomayor, Elena Kagan) issued three separate dissenting opinions.  Justice Sotomayor wrote, “The Court’s order is stunning.  Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.  Last night, the Court silently acquiesced in a State’s enactment of a law that flouts 50 years of federal precedents”.

10. Copycat bills, mirroring the “fetal heartbeat” bill in Texas, are expected to be brought in states such as Arkansas, Florida, South Dakota, Idaho, Indiana and Oklahoma. The Texas Tribune recently wrote, “The state’s anti-abortion measure leaves to private citizens, who are empowered to sue anyone who “aids or abets” someone seeking an abortion – from the doctors who perform abortions to someone who drives a woman to a clinic… bounty-financed brigades in place of law enforcement is a new twist…The same kind of crowd-sourcing that makes social media so toxic could do the same for some kinds of law enforcement.”