On September 1, nearly all abortions became illegal in Texas.
A state law signed by Gov. Greg Abbott earlier this year bans abortions as soon as a fetal heartbeat can be detected. That’s as early as six weeks’ gestation, before many people know they are pregnant, making the bill a near-total ban on the procedure.
Earlier this week, abortion providers asked the Supreme Court to stop the ban from going into effect while legal cases continue. But the justices did not take action, allowing the six-week ban, which contains no exceptions for cases of rape or incest, to become the law of the land in Texas.
So-called heartbeat bills like Texas’s are not new. At least eight have passed in recent years, with a raft of states enacting the bans in 2019. But until the Texas law, no heartbeat bills have gone into effect — they have faced court challenges since they run directly counter to Roe v. Wade, the landmark 1973 decision that established the right to an abortion in America.
But as Vox’s Ian Millhiser explains, the Texas bill was intentionally written to prevent courts from blocking it before it takes effect. Rather than having state officials enforce the abortion ban, the bill essentially empowers private citizens to do so by suing abortion providers, according to the Texas Tribune. This unusual provision makes it harder for abortion-rights groups to sue state officials to block the law, since they aren’t technically the ones who will enforce it.
Regardless, legal challenges to the Texas law remain ongoing, and it could still be struck down. But for now, abortion providers in Texas say they will abide by the law, and most Texans will likely need to travel out of state for an abortion — if they can afford to do so.
Ultimately, what’s happening in Texas could foreshadow the collapse of abortion access across much of the country. If the six-week ban continues to hold up in court, anti-abortion lawmakers elsewhere are likely to pass their own versions, banning abortion at six weeks or even earlier. And later this year, the Supreme Court will hear Dobbs v. Jackson Women’s Health Organization, a challenge to a 15-week abortion ban in Mississippi that could provide another opportunity to strike down Roe v. Wade.
“Heartbeat” bills ban abortion very early in pregnancy
Heartbeat bills around the country are based on model legislation written by Faith2Action, which bills itself as “the nation’s largest network of pro-family groups.”
“While not the beginning of life, the heartbeat is the universally recognized indicator of life,” the group states in an FAQ on its website.
Its model legislation says that if a patient is seeking an abortion, the doctor must first determine whether the fetus has a heartbeat. If a heartbeat is present, the doctor is prohibited from performing an abortion, unless it is necessary to save the mother’s life or “to prevent a serious risk of the substantial and irreversible impairment of a major bodily function.”
The bills generally do not cite a specific gestational time limit for abortions, but reproductive rights groups say the bills amount to a ban on abortion at about six weeks’ gestation. That’s when a doctor can detect “a flicker of cardiac motion” on a transvaginal ultrasound, according to Catherine Romanos, a doctor who performs abortions in Ohio and a fellow with the group Physicians for Reproductive Health.
Some reproductive rights groups argue that the term “heartbeat” bill is a misnomer, since the fetus does not yet have a heart at six weeks’ gestation — the cardiac activity detectable at that time comes from tissue called the fetal pole, as OB-GYN Jen Gunter has written. Planned Parenthood refers to the bills as six-week bans.
Under the Texas law, patients would have to know their menstrual cycle well and immediately recognize they are pregnant in order to get an abortion. They will also need to be able to travel to a clinic and get together the money for the procedure within the time allowed — six weeks’ gestation is just shortly after most pregnant people miss their first period, meaning many people don’t know they are pregnant at this stage. The law contains an exception for medical emergencies, but not for a pregnancy resulting from rape or incest.
The law also includes a provision not seen in previous bans, allowing any private citizen to sue an abortion provider or anyone who “aids and abets” a violation of the ban, according to the Dallas Morning News. The apparent aim of this provision is to make it harder for abortion-rights groups to challenge the law because it is individuals, not the state, who will have the job of enforcing it.
“Planned Parenthood can’t go to court and sue Attorney General [Ken] Paxton like they usually would because he has no role in enforcing the statute. They have to basically sit and wait to be sued,” Josh Blackman, a constitutional law professor at South Texas College of Law Houston, told the Texas Tribune.
The law also does not require that a person have any connection to the abortion provider in order to sue, which some fear could open up clinics — and even individual patients — to abuse through rounds of endless lawsuits.
Reproductive rights groups have pledged to fight the law in any case, and this week, abortion providers filed an emergency application asking the Supreme Court to stop the law from going into effect while legal challenges continued. But the Court did not act on the application, allowing the ban to become law on Wednesday morning.
The law is deeply concerning for abortion-rights groups in Texas, now faced with the prospect of getting nearly all abortion-seekers out of state for the procedure. And it’s a victory for a strategy that has been percolating in the anti-abortion movement for years but has only recently seen signs of success.
The bills have proliferated since 2016, but the Texas law is the first to go into effect
The first bill based on Faith2Action’s model legislation was introduced in Ohio in 2011. It didn’t pass. While similar laws successfully passed in North Dakota and Arkansas in 2013, the tactic was not embraced by all anti-abortion groups. Ohio Right to Life was neutral on the issue until 2018, preferring to back less sweeping restrictions like a 20-week ban.
But after the election of President Trump, who promised to appoint Supreme Court justices to overturn Roe v. Wade, anti-abortion groups began backing more restrictive laws. “Heartbeat” bills in particular began to proliferate at the state level in 2018, with Iowa passing its version in May of that year.
Similar bills later passed in Kentucky, Mississippi, Louisiana, Ohio, Georgia, and elsewhere. With the exception of Texas, none of these are in effect, with most facing court challenges from reproductive-rights groups.
But a court battle is precisely what some supporters of the bills are hoping for. Some legislators backing the heartbeat bills have said they see them as potential challenges to Roe v. Wade, which, together with the 1992 decision Planned Parenthood v. Casey, prohibits states from banning abortion before a fetus can survive outside the womb (a point known as viability). A six-week ban falls well before that limit.
Sponsors of some such bans have been explicit about their desire to challenge Roe. “The science and technology have significantly advanced since 1973,” said Iowa state Rep. Shannon Lundgren, the floor manager of the Iowa bill, in 2018. “It is time for the Supreme Court to weigh in on the issue of life.”
The Supreme Court has yet to take up a case involving a six-week ban. However, in May, the Court announced it would hear Dobbs v. Jackson Women’s Health Organization, a case involving a Mississippi law banning most abortions after 15 weeks. That case will be the first abortion case to be fully briefed and argued before the Court since the confirmation of Justice Amy Coney Barrett, a Trump nominee who has been vocal in her opposition to abortion. And the case could provide an opportunity to revisit and potentially do away with the viability standard, allowing more states to ban abortion at six weeks or before.
Dobbs is likely to be decided next summer. But even before that, patients and providers in Texas are faced with a ban on abortions unseen in America since the days before Roe. And what’s happening there could be a preview of what’s coming nationwide as legislators enact stricter and stricter laws to curb abortion — and courts continue to allow them to do so.
Catherine Kim contributed reporting to this article.