Texas Heartbeat Act

For the carbamate nerve agent also known as SB-8, see TL-599. For the law at issue in Roe v. Wade, see Texas abortion statutes (1961).

Texas Heartbeat Act
Texas Legislature
  • An Act relating to abortion, including abortions after detection of an unborn child's heartbeat; authorizing a private civil right of action.
Passed bySenate
Passed30 March 2021
Passed byHouse of Representatives
Passed6 May 2021
Signed byGovernor Greg Abbott
Signed19 May 2021
CommencedSeptember 1, 2021 (2021-09-01)
Legislative history
First chamber: Senate
Bill citationFull Text of SB 8 with signatures of:
Introduced byBryan Hughes (R–1)
Passed30 March 2021
Voting summary
  • 19 voted for
  • 12 voted against
Second chamber: House of Representatives
Passed6 May 2021
Voting summary
  • 83 voted for
  • 64 voted against
  • 2 absent
  • 1 present not voting
Status: In force

The Texas Heartbeat Act, Senate Bill 8 (SB 8), is an act of the Texas Legislature that bans abortion after the detection of embryonic or fetal cardiac activity, which normally occurs after about six weeks of pregnancy. The law took effect on September 1, 2021, after the U.S. Supreme Court denied a request for emergency relief from Texas abortion providers.[1] It was the first time a state has successfully imposed a six-week abortion ban since Roe v. Wade, and the first abortion restriction to rely solely on enforcement by private individuals through civil lawsuits, rather than having state officials enforce the law with criminal or civil penalties. The act authorizes members of the public to sue anyone who performs or facilitates an illegal abortion for a minimum of $10,000 in statutory damages per abortion, plus court costs and attorneys' fees.[2][3][4]

The Texas Heartbeat Act has been subjected to numerous lawsuits in state and federal court, but the statute has thus far withstood each of these court challenges and remains in effect. Lawsuits challenging the constitutionality of the Act have been filed by abortion providers and advocates,[5] as well as the United States Department of Justice,[6][7] but none of these lawsuits have been able to restore access to post-heartbeat abortions in Texas. The law has been exceedingly difficult to challenge in court because of its unique enforcement mechanism, which bars state officials from enforcing the law and instead authorizes private individuals to sue anyone who performs or assists a post-heartbeat abortion.[8][9] Because the law is enforced by private citizens rather than government officials, abortion providers have been unable to obtain relief that will stop private lawsuits from being initiated against them.[10] This produced an end-run around Roe v. Wade, which had established a federal constitutional right to abortion, because the threat of private civil-enforcement lawsuits forced abortion providers to comply with SB 8 despite its incompatibility with the Supreme Court's then-existing abortion pronouncements.[11][12]

Even when courts have declared SB 8 unconstitutional, abortion providers have remained in compliance with the Act because it purports to subject individuals to private civil-enforcement lawsuits if they perform or assist a post-heartbeat abortion while an injunction that blocks the law's enforcement is in effect, if that injunction is later vacated or reversed on appeal.[13][14][15] On October 6, 2021, federal district Judge Robert L. Pitman issued a preliminary injunction that blocked the state of Texas from enforcing the law,[16] which remained in effect until the U.S. Court of Appeals for the Fifth Circuit issued a stay of Pitman's order two days later.[17] Yet Pitman's order was unable to fully restore access to post-heartbeat abortions in Texas, even during the 48-hour window in which it was in effect, because abortion providers were unwilling to risk the civil liability that would be imposed if Pitman's injunction were stayed or overturned by a higher court.[14][18] The U.S. Supreme Court declined to overturn the Fifth Circuit's stay of Pitman's ruling,[19][20] so any post-heartbeat abortions performed in reliance on Pitman's injunction are subject to private civil-enforcement lawsuits under the terms of SB 8.[13] This has made it difficult for abortion providers to resume services even when they obtain relief from a lower court that pronounces the statute unconstitutional, and it has further frustrated efforts to thwart the statute's enforcement in court.

The success of the Texas Heartbeat Act was a major blow to Roe v. Wade,[21][22] as it provided a blueprint for states to outlaw abortion while insulating their laws from effective judicial review.[23] This enabled the states to evade Roe v. Wade and other Supreme Court rulings that had declared abortion to be a constitutionally protected right.[24][25] It also led other states to copy SB 8's enforcement mechanism and immunize their restrictive abortion laws from judicial review. On May 25, 2022, Oklahoma Governor Kevin Stitt signed HB 4327 into law,[26] which outlaws abortion from the moment of fertilization.[27] Because HB 4237, like the Texas Heartbeat Act, is enforced solely through civil lawsuits brought by private citizens, abortion providers were unable to stop the law in court and ceased performing abortions in Oklahoma, even though the Supreme Court had not yet overruled Roe v. Wade when the statute took effect.[28][29] Idaho has also enacted a six-week abortion ban modeled after the Texas Heartbeat Act, which prevented abortion providers from challenging the constitutionality of the statute in federal court.[30]

  1. ^ "Whole Woman's Health v. Jackson, No. 21A24" (PDF). www.supremecourt.gov. September 1, 2021.
  2. ^ Liptak, Adam; Tavernise, Sabrina (September 1, 2021). "After Silence From Supreme Court, Texas Clinics Confront Near-Total Abortion Ban". The New York Times. ISSN 1553-8095. Archived from the original on September 1, 2021. Retrieved September 1, 2021.
  3. ^ Cite error: The named reference :1 was invoked but never defined (see the help page).
  4. ^ Keshner, Andrew. "Texas abortion law: $10,000 penalty could incentivize 'bounty hunters' to make 'tens of thousands of dollars'". MarketWatch.
  5. ^ "Complaint, Whole Woman's Health v. Jackson, No. 1:21-cv-00616 (W.D. Tex.) (July 13, 2021)" (PDF). reproductiverights.org. Retrieved December 24, 2021.
  6. ^ Devlin Barrett; Ann E. Marimow (September 9, 2021). "Justice Department sues Texas to block six-week abortion ban". The Washington Post.
  7. ^ "Complaint" (PDF). documentcloud.org. US DOJ. Retrieved September 9, 2021.
  8. ^ "Texas Health and Safety Code §§ 171.207–171.208". statutes.capitol.texas.gov. Retrieved December 24, 2021.
  9. ^ Tavernise, Sabrina (July 9, 2021). "Citizens, Not the State, Will Enforce New Abortion Law in Texas". www.newyorktimes.com. Retrieved December 24, 2021.
  10. ^ "Whole Woman's Health v. Jackson, No. 21-463" (PDF). supremecourt.gov. December 10, 2021. Retrieved December 26, 2021.
  11. ^ Gershman, Jacob (September 4, 2021). "Behind Texas Abortion Law, an Attorney's Unusual Enforcement Idea". The Wall Street Journal. Retrieved December 24, 2021.
  12. ^ Blackburn, Jeremy (August 31, 2021). "Abortion providers scramble to respond to patients before new Texas law takes effect". houstonchronicle.com. Retrieved December 24, 2021.
  13. ^ a b "Texas Health and Safety Code §§ 171.208(e)(3)". statutes.capitol.texas.gov. Retrieved December 26, 2021.
  14. ^ a b Caroline Kitchener; Emily Wax-Thibodeaux; Ann E. Marimow; Casey Parks (October 7, 2021). "Despite latest court ruling blocking Texas abortion law, most providers are still reluctant to defy ban". The Washington Post.
  15. ^ Oxner, Reese; Klibanoff, Eleanor (December 9, 2021). "State judge declares Texas abortion law unconstitutional — but does not stop it from being enforced". The Texas Tribune. Archived from the original on September 8, 2022.
  16. ^ Sneed, Tierney (October 6, 2021). "Federal judge issues order blocking Texas' 6-week abortion ban". CNN. Retrieved October 6, 2021.
  17. ^ Goodman, J. David (October 9, 2021). "Most Abortions in Texas Are Banned Again After Court Ruling". The New York Times. ISSN 0362-4331. Retrieved October 9, 2021.
  18. ^ Paul J. Weber; Jessica Gresko (October 7, 2021). "EXPLAINER: The Texas abortion law's swift impact, and future". The Associated Press.
  19. ^ "United States v. Texas, No. 21A85" (PDF). www.supremecourt.gov. October 22, 2021.
  20. ^ "United States v. Texas, No. 21-588" (PDF). www.supremecourt.gov. December 10, 2021.
  21. ^ Kelley, Lauren (September 1, 2021). "Is This How Roe v. Wade Dies?". The New York Times. Retrieved June 18, 2022.
  22. ^ Goldberg, Michelle (September 1, 2021). "Republicans Are Giving Abortion Opponents Power Over the Rest of Us". The New York Times. Retrieved June 18, 2022.
  23. ^ Milhiser, Ian (September 2, 2021). "The staggering implications of the Supreme Court's Texas anti-abortion ruling". Vox. Retrieved June 18, 2022.
  24. ^ Marcus, Ruth (September 2, 2021). "Opinion: The Supreme Court aids and abets Texas in violating women's constitutional rights". The Washington Post. Retrieved June 18, 2022.
  25. ^ Marcus, Ruth (January 21, 2022). "Opinion: The handling of the Texas abortion case is an embarrassment for the federal judiciary". The Washington Post. Archived from the original on January 25, 2022. Retrieved April 7, 2021.
  26. ^ "Text of HB 4327" (PDF). legiscan.com. Retrieved May 25, 2022.
  27. ^ Vander Ploeg, Luke (May 25, 2022). "Oklahoma Governor Signs Bill That Bans Most Abortions". New York Times. Retrieved May 25, 2022.
  28. ^ Kitchener, Caroline (June 4, 2022). "Empty clinics, no calls: The fallout of Oklahoma's abortion ban". The Washington Post. Retrieved June 15, 2022.
  29. ^ Hammer, Josh (June 5, 2022). "Roe v. Wade Is Already Dead". CDN. Retrieved June 15, 2022.
  30. ^ Zernike, Kate (March 14, 2022). "Idaho Is First State to Pass Abortion Ban Based on Texas' Law". The New York Times. Retrieved June 15, 2022.