Texas Heartbeat Act of 2021

Texas Heartbeat Act of 2021 [Image source]
Texas Heartbeat Act Greg Abbott at the signing of the Texas Heartbeat Act of 2021.  [Image source]
Corporate Information
Name	Texas Heartbeat Act
Long title	An Act relating to abortion, including abortions after detection of an unborn child's heartbeat; authorizing a private civil right of action.
Enacted	2021-05-19
Commenced	2021-09-01
Full bill	S.B. No. 8  [local copy]
Signatories	Senate President: Dan Patrick House Speaker: Dade Phelan Secretary of State: vacant House Chief Clerk: Robert Haney Governor: Greg Abbott
Introduced by	Bryan Hughes
Status	In force (2021-10-18)

Executive Summary

The Texas Heartbeat Act is an act of the Texas Legislature. It was introduced as Senate Bill 8 (SB 8) and House Bill 1515 (HB 1515) on 2021-03-11, and was signed into law by Governor Greg Abbott on 2021-05-19. The law came into effect on 2021-09-01. It is the first six-week abortion ban in the United States, and the first of its kind to rely on enforcement by private individuals through civil lawsuits, rather than by the government through criminal or civil enforcement. The Texas Heartbeat Act of 2021 establishes a system in which members of the public can sue anyone who performs or facilitates an illegal abortion for a minimum of $10,000 in statutory damages.

Eight days after the law went into effect, the United States Department of Justice filed a legal action in the United States District Court for the Western District of Texas in Austin, Texas, to challenge the Texas Heartbeat Act of 2021. The complaint argues that SB8 [State Bill No. 8] is preempted by federal law under the supremacy clause of the United States constitution and interferes with the performance of abortion-related services by federal government agencies and their contractors. Federal District Judge Robert L. Pitman issued an order blocking the law on October 6, 2021.On October 8, 2021, the U.S. Court of Appeals for the Fifth Circuit, however, put an administrative stay on Pitman's order, effectively allowing the law to remain in effect, pending further review on appeal.

The Texas Heartbeat Act of 2021 is also being challenged in state court in multiple suits brought by abortion providers and funders, with a temporary injunction hearing scheduled for 2021-10-04. On 2021-09-23, a Lubbock, Texas news source reported that a Texas legislator, State Representative Dustin Burrows, was served with a total of 13 separate lawsuits by abortion-rights plaintiffs. The same day [2021-09-23], the Multi-District Litigation Panel for the state courts of Texas imposed a stay on all trial-court cases, pending a decision on pretrial consolidation into a single MDL court.

Background

A different fetal heartbeat bill, HB 1500, was previously introduced in Texas by Phil King on 2013-07-18, in the wake of Rick Perry signing Texas Senate Bill 5 into law. The bill was not passed. The bill was jointly authored by Representatives Phil King,   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.

On March 11, 2021, the Texas Heartbeat Bill (Senate Bill 8 or SB 8 for short) was introduced by Senator Bryan Hughes. A companion bill (HB 1515) was filed by Representative Shelby Slawson a day later in the Texas House of Representatives.

The Heartbeat Bill was a legislative priority of Republican lawmakers for the 2021 regular session, denoted 87(R). Republicans hold majorities in both houses. It was included on Lieutenant Governor   Dan Patrick's list of top priorities for the 2021 legislative session. The Senate version was approved by both houses of the bicameral Texas legislature after the Senate concurred with House amendments. Governor   Greg Abbott signed the new legislation into law on May 19, 2021.

The private civil enforcement feature of the novel type of anti-abortion legislation was engineered by Jonathan Franklin Mitchell, a former Stanford law professor, former clerk for Justice Antonin Scalia, solicitor general under Rick Perry, and member of the Federalist Society. He proposed the idea in an 2018 Virginia Law Review article, The Writ-of-Erasure Fallacy, then brought it to the attention to an East Texas anti-abortion pastor in 2019 as part of his private practice. Mitchell was able to get the law enacted at a local level in Waskom, Texas in 2019, though was mostly a symbolic move as the town had no abortion facilities. Mitchell then championed for similar laws to be passed in other towns and cities in Texas over the following years, including Lubbock, Texas - where a Planned Parenthood Federation of America facility halted abortion procedures following passage of the local law. Jonathan Mitchell helped Bryan Hughes [see also] draft the bill for the state act based on the municipal ordinances he had written as a means to avoid immediate judiciary scrutiny, primarily by taking the state out of enforcement of the abortion ban. Jonathan Mitchell also serves as an attorney for Texas Right to Life in pending litigation.

• Mitchell, Jonathan F. (2018) The Writ-of-Erasure Fallacy. 104 Virginia Law Review [Va. L. Rev.] 933.  |  local copy

Another related act, the Human Life Protection Act (House Bill 1280), was passed simultaneously. The bill prospectively bans all abortions in Texas, without exemption, if the Roe v. Wade precedent is overturned by the Supreme Court.

Provisions of the Texas Heartbeat Act

The Texas Heartbeat Act allows any person to sue someone who performs or induces an 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 Texas Heartbeat Act of 2021 defines an "unborn child" as a human fetus or embryo at any stage of gestation.

Although an abortion patient may not be named as a defendant, anybody 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 taxi or ride-hailing companies. The Texas Heartbeat Act of 2021 incentivizes private enforcement by authorizing "statutory damages" of at least $10,000 in addition to court costs and attorney's fees if a defendant is proven liable. Plaintiffs are not required to have a personal connection to the patient or abortion provider in order to bring a lawsuit under SB 8.

At midnight, immediately after the law went into effect, many clinics in Texas including Planned Parenthood stopped performing abortion procedures and stopped taking new appointments. However, many clinics reported an increase in patients at their clinics who had completed the 24-hour waiting period and sought to have the procedure done before the midnight deadline.

The Texas Heartbeat Act of 2021 contains exceptions in the case of medical emergency but not for rape or incest. On September 7, 2021, Governor Greg Abbott asserted that the Texas Heartbeat Act does not force raped women to carry pregnancies to term because it gives them "at least six weeks" and that the state would "work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets."

Significance

The Texas Heartbeat Act of 2021 is one of the first in the United States to outlaw abortion as early as six weeks into a pregnancy, even for a brief period of time. In Texas, an estimated 85% of abortions have been performed after the six-week mark, which is often shortly after a pregnant woman misses her menstrual period, and before many women have confirmed or are aware of a pregnancy.

The Texas Heartbeat Act of 2021 is unique in that it is specifically designed to place the burden of enforcement on the populace through civil lawsuits rather than on state actors. This was engineered to deny abortion providers the opportunity to seek federal court injunctions against the enforcement of an unconstitutional statute by state officials. Since the law cannot be enforced by state officials but only by private individuals, there is uncertainty as to whom to sue in order to challenge the constitutionality of the Heartbeat Act of Texas prior to enforcement.

In light of this novel feature in the law, Supreme Court of the United States Associate Justice Sonia Sotomayor wrote that "the statutory scheme before the court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime." On September 9, 2021, however, the U.S. Justice Department sued the State of Texas directly in the U.S. District Court for the Western District of Texas, seeking a declaration that the law is unconstitutional, and injunctive relief.

A study produced by researchers at the University of Texas at Austin claimed that Senate Bill 8 would prohibit 80% of abortions in Texas and would disproportionately affect black women, lower-income women, and women who live far away from facilities that provide abortion care.

Legal Challenges

[ ... SNIP! ... ]

Derivatives

Texas lawmakers used an audacious strategy to get their controversial abortion law  [Texas Heartbeat Act of 2021] past the Supreme Court of the United States: empowering private citizens to sue abortion providers and anyone who "aids and abets" patients trying to obtain the procedure in the state after six weeks. But the lawmakers may not have anticipated what their law could inspire. Now, Governor of California   Gavin Newsom says that he plans to borrow the tactic to advance his own measure that would allow private citizens to sue gun manufacturers or people who sell assault weapons or so-called ghost guns.

In a statement on Saturday [2021-12-11], Gavin Newsom's office said his staff would work with the Attorney General of California and Democrats who control the state legislature to write a bill that allows state citizens to sue anyone who "manufactures, distributes, or sells an assault weapon or ghost gun kit or parts" in California. Newsom suggested damages of at least $10,000 per violation.

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SCOTUS is letting private citizens in Texas sue to stop abortion?!

If that's the precedent then we'll let Californians sue those who put ghost guns and assault weapons on our streets.

If TX can ban abortion and endanger lives, CA can ban deadly weapons of war and save lives. https://t.co/N5Iur9PEUZ

-- Gavin Newsom (@GavinNewsom) December 12, 2021

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Gavin Newsom's announcement is a bold political gambit likely to prove popular with progressive voters in his state and elsewhere. But it's not immediately clear if it will work legally. California has long banned the manufacture and sale of so-called assault style weapons, including semi-automatic rifles like the popular AR-15. A federal judge ruled in 2021-06 that California's law is unconstitutional in an opinion in which he compared AR-15s to Swiss Army knifes. The ban remains in effect while the states appeals.

On Friday [2021-12-10], the U.S. Supreme Court allowed Texas' extreme law banning abortion after six weeks' gestation to remain in effect. Critics of the Texas law, including Gavin Newsom, have previously complained the law [Texas Heartbeat Act of 2021] was drafted to evade review in federal court, where it would otherwise have been blocked.

After criticizing the law, Newsom pivoted to borrowing from it to try and tamp down on gun violence. As he said in a statement Saturday [2021-12-11]: "If the most efficient way to keep these devastating weapons off our streets is to add the threat of private lawsuits, we should do just that."

Governor of California   Gavin Newsom on Saturday [2021-12-11] pledged to empower private citizens to enforce a ban on the manufacture and sale of assault weapons in California, citing the same authority claimed by conservative lawmakers in Texas to outlaw most abortions once a heartbeat is detected  [Texas Heartbeat Act of 2021].

[ ... snip ... ]

Gavin Newsom's gun proposal would first have to pass the California State Legislature before it could become law. The California State Legislature is currently not in session, and is scheduled to reconvene in January 2022. It usually takes about eight months for new bills to pass the California State Legislature, barring special circumstances.

State Senator Brian Dahle - a Republican from Bieber, California - would oppose the plan but predicted it could probably pass California's Democratic-dominated state legislature. Brian Dahle said the proposal was most likely a stunt for Gavin Newsom to win favor with his progressive base of voters ahead of a possible run for president in the future.

"The right to bear arms  [Right to keep and bear arms in the United States is different than the right to have an abortion  [see: anti-abortion movements]. The right to have an abortion is not a constitutional amendment. So I think he's way off base," Dahle said. "I think he's just using it as an opportunity to grandstand."

But Gavin Newsom's Saturday night [2021-12-11] declaration is a fulfilled prophecy for some gun rights groups who had predicted progressive states would attempt to use Texas' abortion law to restrict access to guns. That's why the Firearms Policy Coalition  [Ballotpedia.org: Firearms Policy Coalition], a nonprofit group that advocates for gun rights, filed a brief with the Supreme Court of the United States opposing the Texas law.

"If Texas succeeds in its gambit here, New York, California, New Jersey, and others will not be far behind in adopting equally aggressive gambits to not merely chill but to freeze the right to keep and bear arms," attorney Erik Jaffe  [2019-05-14: "Erik Jaffe Files Amicus Brief Claiming NYC Gun Control Law Violates the Second Amendment"  |  local copy  |  Erik S. Jaffe  | local copy] wrote on behalf of the Firearms Policy Coalition.

For the last seven years, Dr. Bhavik Kumar has provided abortion care at the Planned Parenthood Center for Choice in Houston, Texas. "These last 100-plus days have been the most challenging of my entire career," Bhavik Kumar said. That's because of the near-total ban on abortion in Texas that went into effect on 2021-09-01. Since then, Kumar and other providers have been forced "to violate our conscience and our training, and to turn away patients who need us," he said. "And we have no good answers to their questions of why this is happening or when it might end."

On 2021-12-10, in a ruling with far-reaching consequences, the Supreme Court of the United States essentially said the challenges facing patients and providers might never end. Not only does the court's ruling allow Texas's abortion ban to remain in effect indefinitely, it also gives other states the green light to write additional laws that flagrantly violate the Constitution.

"The implications of today's decision will be profound and will reverberate for years to come," said Marc Hearron  [local copy], senior counsel with the Center for Reproductive Rights. "Today it is abortion rights under attack. Tomorrow, I have no doubt we will see copycat abortion laws in other states. And after that, any other fundamental right recognized by the U.S. Supreme Court can come under attack, and the federal courts will be handcuffed from doing anything to stop it."

The Ripple Effect of S.B. 8

• The Texas Heartbeat Act of 2021, introduced as Senate Bill 8 (SB 8) and House Bill 1515 (HB 1515) on March 11, 2021, and was signed into law by Governor Greg Abbott on 2021-05-19.

At issue in the case is Texas Senate Bill 8, which bans all abortion after six weeks, well before many people know they're pregnant. Roughly 90 percent of people who obtain abortions in the state are at least six weeks into pregnancy; 10 percent of the U.S. population of reproductive age lives in Texas. While similar bans enacted in 11 states have been blocked by the federal courts for flouting nearly 50 years of precedent upholding the right to abortion before fetal viability - roughly four months beyond the six-week mark - the Texas law was designed specifically to circumvent constitutional protections.

Instead of making the ban enforceable by a state actor, like the head of the state health department or the attorney general, S.B. 8 allows private actors to bring civil suits against anyone they believe may have provided an abortion or helped someone obtain an abortion in violation of the law. The latter could include a friend who drives a patient to a clinic or an abortion fund that helps to finance care.

The point is to farm out enforcement so there is no clear state actor for providers or patients to sue to block the law from taking effect, what's known as a pre-enforcement challenge.

[ ... snip ... ]

Additional Reading

• [RewireNewsGroup.com, 2021-11-29] Conservatives Assume They've Already Won the Big Supreme Court Abortion Case.  A Supreme Court newbie is defending Mississippi's abortion ban and asking the justices to dismantle Roe v. Wade.

• [NPR.org, 2021-11-29] As the Supreme Court considers Roe v. Wade, a look at how abortion became legal.

On Friday [2021-10-15], the Biden administration announced that it planned to appeal to the Supreme Court an order from a lower court issued last week, which kept in place a restrictive Texas law that outlaws abortion after the sixth week of pregnancy.

A three-judge panel in the United States Court of Appeals for the Fifth Circuit lifted a previous injunction from an appellate judge that had blocked the law's enforcement. The U.S. Department of Justice (DOJ) then sought to have that panel place a temporary stay on its own ruling until formal arguments against the law could be heard, which it refused to do on Thursday [2021-10-14].

In response, the DOJ said it would appeal the Fifth Circuit Court's refusal to place a stay on the law, also known as Senate Bill 8, directly to the Supreme Court - but it didn't state specifically when it would make such an appeal. "The Justice Department intends to ask the Supreme Court to vacate the 5th Circuit's stay of the preliminary injunction against Texas Senate Bill 8," a statement from DOJ spokesperson Anthony Coley said.

The Texas law bars all abortions after six weeks of pregnancy - so early on in the pregnancy that many people don't yet realize they are pregnant - and contains no exceptions for rape or incest. Rather than having the state enforce the law, private citizens are incentivized to sue people they believe helped someone procure an abortion, including abortion providers themselves. Petitioners are allowed to sue for sums of up to $10,000.

• [NYTimes.com, 2019-10-14] Marc Benioff: We Need a New Capitalism.  The current system has led to profound inequality. To fix it, we need businesses and executives to value purpose alongside profit.

A federal judge on Wednesday [2021-10-06] ordered Texas to suspend the most restrictive abortion law in the U.S., calling it an "offensive deprivation" of a constitutional right by banning most abortions in the nation's second-most populous state since September 2021.

The order by U.S. District Judge Robert Pitman is the first legal blow to the Texas law known as Senate Bill 8, which until now had withstood a wave of early challenges. In the weeks since the restrictions took effect, Texas abortion providers say the impact has been "exactly what we feared."

In a 113-page opinion, Pitman took Texas to task over the law, saying Republican lawmakers had "contrived an unprecedented and transparent statutory scheme" by leaving enforcement solely in the hands of private citizens, who are entitled to collect $10,000 in damages if they bring successful lawsuits against abortion providers who violate the restrictions.

[ ... snip ... ]

Advocates for reproductive freedom and LGTBQ+ equality on Saturday pointed to a legal brief filed in a U.S. Supreme Court case that could soon overturn   [Wikipedia] as a crucial example of the broader goals of those fighting to end abortion rights across the United States. "It's never just been about fetuses. It's about controlling sex," tweeted Muhlenberg College assistant professor Jacqueline D. Antonovich, a historian of health and medicine.

Both Antonovich and Elie Mystal,   The Nation's justice correspondent, responded to a portion of the brief by New York University School of Law professor Melissa Murray that challenges previous rulings from the country's highest court on not only abortion but also LGBTQ+ rights. "Of course" the so-called "right to life" movement is also coming after cases that established key LGBTQ+ protections, said Mystal, "because it's never about 'life' and always about 'Christian fundamentalism.'"

The amicus brief (pdf) that Murray highlighted - co-authored by the architect of a new abortion ban in Texas - urges reversing Roe v. Wade, the landmark 1973 ruling that affirmed the constitutional right to pre-viability abortions, and the related 1992 case Planned Parenthood v. Casey.

The brief also takes aim at , a 2003 case that overturned homophobic state sodomy laws, and the 2015 equal marriage case Obergefell v. Hodges, suggesting that the court should not "hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are just as lawless as Roe."

Zack Ford of the progressive group Alliance for Justice   said Saturday [2021-09-18] that "this is hardly surprising. Conservatives know they've got the Supreme Court in the palm of their hands and they'll ask for anything and everything, including the return of sodomy laws. Remember, ALL anti-LGBTQ and anti-choice views stem from the same desire to control bodies."

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