By: Alexandra Spaw
April 12, 2022
“Can you think of any laws that give the government the power to make decisions about the male body?”
The Governor of Texas recently signed into law a statutory scheme that Chief Justice Roberts has described as “not only unusual, but unprecedented.” The Texas Heartbeat Act (“S.B. 8”) has proscribed abortions after a “fetal heartbeat” has been detected, which occurs roughly at 6 weeks, before most women even know they are pregnant. According to the American College of Obstetricians and Gynecologists, the activity measured on an ultrasound in early gestation is electrical impulses, not a true heartbeat. Medical and reproductive health experts say the reference to a heartbeat in early pregnancy is medically inaccurate as an embryo does not have a developed heart at six weeks’ gestation.
It is clear that this ban is overwhelmingly unconstitutional under Supreme Court precedent such as Roe v. Wade,410 U.S. 113 (1973)and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) which set the earliest boundary for states to enact abortion bans at viability.However, the state of Texas will not be prosecuting women or doctors for violations of this law. The statutory scheme has given the state’s population a private civil right of action to enforce the abortion ban. Private citizens are now allowed, if not encouraged (by a statutory minimum of $10,000 in damages), to sue anyone who assists a woman in obtaining an abortion after her sixth week of pregnancy.
S.B. 8 mandates that “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat.” While the heart begins to form at roughly 6 weeks of pregnancy, the term heartbeat is a misnomer according to some physicians. What is actually measured on an ultrasound at 6 weeks is electrical activity, not a heartbeat. The six-week mark in pregnancy occurs approximately two weeks after a woman’s missed period. At this point most women aren’t even aware of the pregnancy. As a result, S.B. 8 strips women of access to reproductive healthcare at 6 weeks by drawing an arbitrary line that has no relation to viability. This is an especially cruel line to draw considering S.B. 8 is lacking many necessary exceptions. S.B. 8 barbarically contains no exception for forced pregnancies resulting from rape or incest. No exception is provided for long-accepted fetal anomalies or chromosomal abnormalities that usually prompt abortion. For example, if a physician detects in the second trimester that the fetus is developing without a brain, the mother must carry the pregnancy to term and deliver a still-born child. S.B. 8 also ignores maternal medical conditions that do not place the mother in immediate danger during pregnancy, but likely increase the chance of death during childbirth.
While many countries have a cutoff of 15 weeks or earlier for abortions, those countries also offer broad exceptions after the first three months for socioeconomic reasons such as unemployment, medical issues like fetal impairment, or social issues like the age of the mother. In the global landscape, countries around the world including Mexico, Argentina, New Zealand, Thailand, and Ireland have made it easier to legally get an abortion; Texas has made it harder. Texas now has one of the most restrictive abortion laws in the world. Only three countries in the last 27 years have made laws that restrict, rather than expand, abortion rights, Nicaragua, El Salvador, and Poland. The United States has one of the worst maternal mortality rates among the developed world, and Texas’s maternal mortality rate is higher than the national average. In 2018, there were 17 maternal deaths for every 100,000 live births in the United States. This rate is almost double that of France, Canada, the United Kingdom, Australia, Switzerland, Germany, Norway, the Netherlands, and New Zealand.
For almost half a century, American women have relied on the bodily autonomy and access to comprehensive reproductive healthcare that Roe has given them. Court precedent is undeniably clear that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” However, S.B. 8 flies in the face of precedent by banning abortion after a “fetal heartbeat” is detected at approximately 6 weeks, long before viability. As previously mentioned, no state actor oversees enforcement of S.B. 8. Instead, any person who is not an employee of the state has a private right of action to sue anyone who either performs an abortion or who “aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail receive a minimum of $10,000 in statutory damages for each abortion, plus costs, attorney’s fees, and mandatory injunctive relief. As insightfully put by Justice Sonya Sotomayor, “In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” As the world takes steps forward in accepting women’s legitimate right to reproductive health, Texas has taken an unfortunate big step back.