The new Texas law (effective September1, 2021) prohibits abortions after a fetal heartbeat is detected which can be as early as 6 weeks gestation, counted from the first day of the woman’s last menstrual period and thus actually before some women will have missed a period and given any consideration to possibly being pregnant. The law does not exclude pregnancies resulting from incest or abortion, but does allow for medical emergencies. Previously, Texas law banned abortion after 20 weeks.

It is not surprising that pro-abortion groups have pledged to challenge the constitutionality of the new law. However, this law is different from any laws passed in any of the states in the past: it prohibits the State of Texas from enforcement of the ban and empowers private citizens to do so in court. Thus, supporters say that opponents of the ban cannot sue the the State of Texas because the state has no authority to enforce the ban and has no state penalty for violating the ban. One cannot sue the state unless they assert that they have been harmed by the state. In this case, the state has no authority to harm anyone who is in violation of the ban.

Instead, the law provides that enforcement will be “exclusively through the private civil actions described…” The ban names those risking liability for disobedience as anyone who “performs or induces an abortion” and anyone who “aids and abets” an abortion, “including [anyone] paying for or reimbursing the costs of an abortion through insurance or otherwise.” Upon conviction, all of those so accused will pay a fine not less than $10,000 for each such abortion performed, and the plaintiff will be reimbursed costs and attorney’s fees.

Since 2013, 19 states have introduced fetal heartbeat laws. In 3 states the proposed legislation died in committee, but bills in 11 states have been signed into law (including the new Texas law). Bills in 5 states are pending advancement through their legislative processes. However, all of the laws which have made it through the legislative process so far have been blocked by federal courts before they could take effect…except the new law in Texas which will take effect September 1, 2021.

It is without question that pro-abortion activists will try to prevent the new Texas law from taking place. It is also without question that the other states which enacted laws that were blocked in federal court will be watching the situation closely. If Texas prevails against its challengers, one can expect other states to “copy and paste” the Texas law into their legislative agenda.

In the meantime, the Supreme Court has taken up the question of constitutionality of the Mississippi case of Dobbs v. Jackson Women’s Health Organization. Their ruling at the end of the 2021-2022 session could change the authority of the states to enact laws limiting abortion to a time well prior to fetal liability (nominally about 20 weeks). Survival of the Texas law and the Supreme Court decision in this case could change everything. I discuss this in a separate post.