S. B. 8, the Texas Heartbeat Bill, Comes Into Effect

By Nina Davis

New York City, New York

Protestors outside the Texas State Capitol on May 29th (Photo credit: Sergio Flores / Getty Images)

On September 1st, 2021, the Texas Senate Bill 8, also known as the ‘Heartbeat Act’, came into effect, banning all abortions after the 6th week of pregnancy, after having been adopted as legislation in May.

According to a study conducted by Amy M. Branum and Katherine A. Arens of the CDC, the average gestational age of those asked about when they discovered they were pregnant was 5.5 weeks. At 6 weeks, the individual's period would have been late by approximately 2 weeks, a lateness that could have been caused by a multitude of reasons other than pregnancy. Given this time frame, pregnant individuals in Texas would have less than half a week to learn of their conception to perform a legal abortion.

As of 2017, approximately 96% of counties in Texas did not have a facility that performed abortions, and as of September 1st, 2021, many clinics have ceased offering the procedure in fear of legal prosecution. Organizations such as Fund Texas Choice offer services to abortion clinics outside of the state, but since September 1st they have been overwhelmed and cannot provide services to every individual in need. Anna Rupani, co-executive director of Fund Texas Choice, stated in an interview with the New Yorker that they have had to turn off their phone hotline as staff are at full capacity.

Under S. B. 8, any individual may file a lawsuit against anyone who allegedly aided an individual that received an abortion. This lawsuit may target individuals such as secretaries at abortion clinics and taxi drivers that provide transport to a patient, but not the patient themselves. Should the plaintiff win the case, each defendant is subject to pay a fee of up to $10,000. While the plaintiff's legal fees will be covered in the event they win, the defendant does not have the same privileges and will not be reimbursed, even if they win their case.

For some groups, the enactment of S.B. 8 comes as a win at the end of what has been a decades long war. Dr. Joe Pojman of the Texas Alliance for Life group states that, "there are as many as 200 unborn babies' lives who are saved every day that this law is in effect." This statistic shows just how many abortions are typically sought out in Texas.

Since the Supreme Court's decision to not block or freeze the bill until there can be further deliberation, there have been several recent developments in the fight to bring S.B. 8 out of law. But, as the bill allows any individual who is not employed by the state of Texas to file a suit on abortion, there have been major obstacles in pushing back on the restrictions.

On September 9th, the Department of Justice filed a lawsuit against the state of Texas, hoping to permanently stop any citizen from acting on S.B. 8. One day earlier, on September 8th, Lyft President John Zimmer announced that the company would create a fund to cover the fees of any driver that may be sued under S. B. 8, Uber and MatchUp announced the same shortly after. Other companies such as Bumble have donated money to abortion aid foundations in Texas.

Many multimillion dollar corporations such as Glossier, Slack and Postmates did not respond to the New York Times's request for a comment.

While the bill will now have immediate consequences for those seeking abortions in Texas, it has also raised issues in other areas. The Senate Judiciary Committee has announced a hearing to look into the Supreme Court's use of the "shadow docket," a term for decisions made on an emergency basis. The Texas decision could have meaningful and lasting implications for the future of the United States court system, beginning with S. B. 8. Although it seems that the bill is a violation of the language in the 1973 Supreme Court case, Roe V. Wade: "In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision", the Texas bill does not allow for any state intervention. Therefore, there is no technical violation of the precedent set by the previous case.

With other cases such as Mississippi House Bill 150 set to be heard by the Supreme Court, it is unclear what the future of reproductive legislation and court precedent will be.

As of November 1st, the Supreme Court indicated there may be an injunction imposed against the bill. This move comes as a surprise due to the Court's previous ruling on the law. After hearing two challenges to the bill, Justice Kavanaugh may prove to be the fifth vote against the ban, citing concerns over future precedent when it comes to issues such as gun control.

One of the two challengers was the U.S Department of Justice argued that "no constitutional right is safe" if Texas maintains this bill. U.S solicitor general Elizabeth B. Prelogar defended the DOJ's choice to file an injunction against the bill and the Supreme Court's previous decision to allow the bill to go into effect.

Tensions are still running high. Outside of the court on the 9th, protestors both for and against abortion gathered with signs, chalk and tape covering their mouths in some cases. The crowds consisted of people from a range of different groups and backgrounds, from college students to women that had previously had abortions. It is clear that this bill will continue to have a lasting impact across the country.

The Court will now vote on the bill and announce the decision that could change the course of US legislation for years to come.