INTRODUCTION
The Texas abortion laws have gone through a lot of changes through the years. Abortion in Texas has been illegal since September 1, 2021, with only one exception through the Supreme Court’s ruling.
TEXAS ABORTION LAW
A recent law on abortion has been passed in Texas which makes abortion illegal in the state. According to the law, once a fetal heartbeat has been identified, the physicians cannot further perform any abortions. The Texas Heartbeat Act came into force on September 1, 2021, and has faced legal challenges since then.
ANALYSING THE TIMELINE OF TEXAS ABORTION LAWS
The law bans most abortions once a heartbeat is detected which is usually about 6 weeks. Many women are usually unaware of their pregnancy at this period. One of the 1925 laws has also been revived including legal proceedings and civil penalties against abortion providers. Below is a timeline of the abortion laws in Texas.
- “1925 Laws” – Criminalized abortion, as early as 1854.
- 1973 – In the landmark decision of Roe v Wade[1], the Supreme Court ruled the Texas abortion law to be unconstitutional. It could be interpreted from the constitution that abortion was legal and identified abortion as something that falls under the right to privacy.
- 1992 – The right to abortion which was established in Roe v. Wade was supported and upheld in the landmark case of Planned Parenthood v. Cassey[2], but made changes to the structure laid down in Roe v. Wade.
- 1999 – Parental notification was passed where a physician was forbidden from carrying out an abortion on a minor. But they could perform the abortion provided they had informed or notified the minor’s parent or guardian.
- 2003 – ‘Woman’s Right To Know Act”[3] was created which said that specified medical risks and sources of assistance were to be talked about by the abortion provider. It also contained various other provisions regarding abortion.
- 2011 – Added a condition of having to do a sonogram before an abortion. It demanded that an abortion provider have to do a sonogram at least 24 hours before carrying out an abortion.
- 2013 – The legislature elevated standards at abortion clinics which had become much stricter than before and restrictions were posed on medical abortions, which restrained a doctor from carrying out an abortion if the foetus was found to be 20 weeks or older.
- 2016 – Restrictions were posed on minors who wanted abortions in the case Whole Woman’s Heath v. Hellerstedt[4]. Texas had passed a law in 2013, where one of the requirements was to admit privileges by the abortion provider which was not more than a distance of 30 miles. Through this, the doctor could admit patients as though doctors were employees there and give treatment without the approval of any other doctor. This led to having only 19 abortion clinics out of 42 and thus the Supreme Court in this case held that restrictions cannot be placed at abortion clinics that spawn “undue burdens” on women who wish to seek an abortion.
- 2017 – Bill was created which prohibited partial births and dismemberment abortions. Further, it included restrictions on how the fetal tissue had to be gotten rid of.
- 2021 – The Texas Heartbeat Act[5] was passed, which banned abortions once a foetal heartbeat was identified.
- 2022 – Dobbs v. Jackson Woman’s Health Organization overturns the ruling in Roe v. Wade declaring that there is no right to abortion in the U.S Constitution.
THE CURRENT ABORTION LAW IN TEXAS
Senate Bill 8 (SB 8)[6] is the law that prohibits abortion within 6 weeks of gestation. Gestation is the period between conception and birth and under this, a woman cannot have an abortion even in cases of incest or rape. The new Texas abortion law was changed on August 25th, 2022 in Dobbs v. Jackson’s case[7] where the decision permitted the states to make their abortion laws. Under this new law, any person who has carried on or aided in a woman’s abortion is liable to criminal prosecution. It should be noted that the woman who got the abortion cannot be prosecuted.
Dobbs v. Jackson Women’s Health Organization
The facts of the case[8] are that “The Gestational Age Act”, was passed by Mississippi in 2018 banning all abortions which were after 15 weeks gestational age. This was challenged by one of the doctors from Jackson Women’s Health organization, which was the only abortion medical facility left in the state. The Fifth Circuit Court of Appeals (federal appellate court having appellate jurisdiction) gave permanent injunctions against the ban and thus Mississippi moved to the Supreme Court.
The court in this case approved the state’s ban and has now abandoned the right to abortion overturning a 50-year precedent which was set in Roe v. Wade. This ruling does not only ban abortion in the state of Mississippi but also gives power to other states to ban abortion completely.
PUNISHMENT FOR PEOPLE WHO PERFORM AN ABORTION
The Supreme Court’s decision permitted Texas and other states like Louisiana to make abortions illegal at all stages of pregnancy with a few exceptions. There are a couple of laws in the state which provide for punishment for people assisting abortions. Let us take a look at these laws:
- House Bill 1280 (HB 1280) – This is also known as “Trigger Ban”. Under this bill, abortion providers assisting or carrying out an abortion at all phases of pregnancy are open to legal penalties against them. The only exemption under this law is if the health and life of the pregnant woman is in danger. Even rape or incest does not come under the exemption of this punishment[9].
- Texas Government Code Sec. 171.203[10] – This is also called as the “heartbeat law”. Any physician is not permitted to perform any abortion once a foetal’s heartbeat has been identified. Any doctor performing an abortion after detecting a foetal heartbeat will be charged with a civil penalty of $10,000.
- Health and Safety Code Section 171.018[11] – It imposes a penalty of up to $10,000. This penalty is for physicians who carry out an abortion without a sonogram and without giving any oral or written clarification.
- Health and Safety Code Section 171.065[12] – If a person has an intention, or has knowledge or purposely causes a drug-induced abortion, then the person commits an offence and is classified as a state jail felony.
- Health and Safety Section 171.102[13] – This section makes it a jail felony to whoever assists in or carries on a partial–birth abortion.
- Health and Safety Section 171.153[14] – An offence committed under this section is again a state jail felony. It is against those persons who assist or perform a dismemberment abortion.
As per the Texas Government Code Sec. 170A.002i[15], it is a first-degree felony if a person carries on or assists in an abortion leading to the death of the unborn child. Anyone committing an act under this section will face imprisonment of 5 to 99 years. Performing an abortion in Texas knowingly or attempting an abortion or induced abortion will be charged with a second-degree felony. Other punishments include cancellation of nursing, medical or pharmacy licence and also permit the Texas attorney general to get an amount not below $1000,000 as a penalty civil in nature.
WHO CAN BE SUED?
As already mentioned, whoever performs an abortion can be sued. The law mentions those who can be sued for assisting an abortion:
- Medical professionals
- Whoever sells abortion medicines also known as pharmacologists
- Any person giving or handing over abortion medication to any other person
- Any member of the family or a friend of the pregnant woman who helps out with the payment for the procedure of the abortion
- Whoever gives a lift to the pregnant person to the abortion hospital
EXCEPTIONS UNDER THE TEXAS ABORTION LAW
The law makes abortion illegal at all stages of pregnancy with one exception. If it is found that the pregnant woman may suffer from some “medical emergency” in the course of such pregnancy, then the physician can go ahead with the abortion. Therefore, if a pregnant woman is in danger of a life-threatening situation which is caused due to the pregnancy, then this kind of abortion is not considered to be illegal. The exceptions given under this are much narrower few conditions that already exist and can cause harm to pregnancy and cannot come under the exception of medical emergency. Further, rape or incest do not come under these exceptions.
CONCLUSION
The evolving abortion law in Texas is a concerning departure from reproductive rights. Criminalizing abortion and bringing in restrictive measures disproportionally affect women and impair bodily autonomy. While some may argue about giving protection to foetus, these laws have a risk of jeopardizing women’s health and degrades right to life.
Author(s) Name: Ektaa Chatterjee (Ramaiah College of Law, Bangalore)
Reference(s):
[1] Roe v. Wade District Attorney of Dallas County, 410 U.S. 113 (1973)
[2] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
[3] Women’s Right To Know Act, 2003, Act of the parliament, 2003 (Texas)
[4] Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016)
[5] The Texas Heartbeat Act, 2021, Act of Parliament, 2021 (Texas)
[6] ibid
[7] Dobbs v. Jackson Women’s Health Organization 597 U.S. 215 (2022)
[8] ibid
[9] Trigger Laws, Texas Gov. (Dec 25, 2023, 6:37 PM) <https://guides.sll.texas.gov/abortion-laws/trigger-laws>
[10] Texas Government Code, s 171.203
[11] Health and Safety Code, s 171.018
[12] Health and Safety Code, s 171.065
[13] Health and Safety Code, s 171.102
[14] Health and Safety Code, s 171.153
[15] Texas Government Code, s 170A.002i
