Texas Abortion Ban: Everything You Need to Know

The Texas Abortion Ban, or Senate Bill 8, was signed into law in May 2021. The law puts an outright ban on all abortions as early as six weeks of pregnancy, which is just two weeks after the time that most pregnancies become known. 

Senate Bill 8

Reproductive rights activists have labeled SB8 as the most extreme anti-abortion law nationwide, and the strictest in Texas since the landmark decision, Roe v. Wade. 

Abortions that take place after an ultrasound and can detect what lawmakers called a “fetal heartbeat” are banned under SB8. Medical and legal experts claim the term “fetal heartbeat” is misleading, as fetuses do not process hearts.

Rather, an ultrasound can detect “a little flutter in the area that will become the future heart of the baby,” says Dr. Saima Aftab, medical director of the Fetal Care Center at Nicklaus Children’s Hospital in Miami. This flutter comes from a group of cells, that will eventually become the heart, which begin to fire electrical signals as early as six weeks after conception.

The law includes cases when pregnancy is conceived through rape or incest, with an exception for medical emergencies. The bill does not mention abortions in the case of miscarriage. 

Similar bills have been struck down by the courts, but Texas lawmakers have found a legal loophole. Instead of having the government and legal officials enforce the law, the bill encourages private citizens to sue anyone they suspect may have “aided and abetted” someone to have an abortion after six weeks. 

This can include medical providers, family members, friends, and even rideshare drivers who drop someone off at a clinic. The law offers a $10,000 bounty to anyone who reports another person whom they suspect has helped facilitate an abortion after six weeks. 

With previous anti-abortion bills, activist organizations like Planned Parenthood or the HRC can sue the state’s attorney general, which will usually get the law removed. In this case, since no government official is enforcing the law, there is no one to sue, until the law goes into effect and cases begin to get filed. 

“It’s a very unique law, and it’s a very clever law,” says Josh Blackman, a constitutional law professor at South Texas College of Law Houston. “Planned Parenthood can’t go to court and sue Attorney General Paxton like they usually would because he has no role in enforcing the statute.”

Supreme Court Ruling 

In a midnight order on September 1, the day Senate Bill 8 went into effect, the Supreme Court in a 5-4 ruling gave the green light to the Texas bill. 

The court’s majority leader said in a statement that abortion providers who had originally challenged the bill had raised “serious constitutional questions” about the law, but that they hadn’t shown enough evidence that they’d be “irreparably injured” if it were allowed to go into effect for now.

The Supreme Court ruling directly contradicts the landmark decision Roe v. Wade, which legalized abortions up to 24 weeks after conception, nationwide. Nancy Northup, president of the Center for Reproductive Rights, says the ruling will embolden other states and other lower courts to “completely ignore” the Roe v. Wade decision, which she described as already a “dead letter in the state of Texas.”

Many of the Supreme Court justices have made their opinions on the current reproductive health laws known. Conservative Justice Clarence Thomas was quoted in 2019 saying that abortion jurisprudence has “spiraled out of control.” 

Technically, the court’s decision is not a determination of whether the six-week ban is constitutional or not, nor is it a reversal of Roe v. Wade. Legal experts refer to this type of decision as a “shadow docket,” in which the court’s action, or inaction, can take big steps without explanation. 

If Roe v. Wade were overturned, 22 states have laws to restrict abortion access, and 14 states, plus the District of Columbia, have laws that protect abortion access regardless. 

Going Forward

Several activist groups and organizations have made statements saying that they plan to fight the Texas abortion ban, despite the legal loophole. 

House Speaker and co-chair of Congress’s pro-choice caucus Nancy Pelosi has said that she plans to bring up legislation which would codify Roe v. Wade, as soon as the house returns from recess this month. Pelosi called the Supreme Court move a “cowardly, dark-of-night decision.”

“Every woman, everywhere has the constitutional right to basic healthcare.  SB8 is the most extreme, dangerous abortion ban in half a century, and its purpose is to destroy Roe v. Wade, and even refuses to make exceptions for cases of rape and incest,” Pelosi says. “This ban necessitates codifying Roe v. Wade.”

The Congressional Caucus for Reproductive Rights held an emergency meeting on September 2, to discuss Texas’ new abortion law and what Congress can do to ensure continued access to abortion services for all Americans throughout the U.S.–including those who live in Texas.

Their first priority, according to Press Secretary Jane Fillion, is the need for Congress to act quickly to pass the Women’s Health Protection Act, or WHPA, which would guarantee the right of all Americans to access abortion care. 

Another unlikely ally has been found in the Satanic Temple, a religious group that is fighting to protect abortion rights under the religious freedoms act. 

“The Satanic Temple stands ready to assist any member that shares its deeply-held religious convictions regarding the right to reproductive freedom,” the group announces. “Accordingly, we encourage any member who resides in Texas and wishes to undergo the Satanic Abortion Ritual within the first 24 weeks of pregnancy to contact The Satanic Temple so we may help them fight this law directly.” 

Uber and Lyft have also both made statements to fight any potential prosecution to their drivers. 

However, the Justice Department announced September 9 they were suing the state of Texas over the state law, arguing it was enacting “in open defiance of the Constitution.” The lawsuit asks a federal judge to declare that the law is invalid, “to enjoin its enforcement, and to protect the rights that Texas has violated.”

The lawsuit seeks an immediate injunction to prohibit enforcing the law in Texas. Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, says in a statement that the lawsuit is a critical first step to righting this injustice and preventing the same process from playing out in other states. Amiri adds in an interview that she expects the lawsuit to move quickly, possibly reaching the Supreme Court within weeks.