Texas Heartbeat Act

(R-Mineola) introduced and authored the Texas Heartbeat Act A different six-week abortion ban, HB 59, was previously introduced in Texas by Representative Phil King on July 18, 2013. The bill did not pass. In 2019, another six-week abortion ban was introduced as HB 1500, which was jointly authored by Representatives Briscoe Cain, Phil King, the late Dan Flynn, Tan Parker, and Rick Miller. As of February 26, 2019, HB 1500 had 57 sponsors or cosponsors of the 150 members of the Texas House of Representatives. HB 1500, like HB 59, relied on conventional public enforcement by state officials, similar to laws that had been enacted in other states. HB 1500 did not pass. A companion bill (HB 1515) was filed by Representative Shelby Slawson a day later in the Texas House of Representatives. Unlike HB 1500, SB 8 and HB 1515 contained a novel enforcement mechanism designed to shield the law from pre-enforcement judicial review. Each of the bills explicitly forbade state officials to enforce the law in any way, and instead authorized private individuals to sue those who perform or assist abortions after cardiac activity had been detected for $10,000 per abortion, plus costs and attorneys' fees. In structuring the law this way, the authors sought to shield it from judicial review in federal court, because lawsuits challenging the constitutionality of a state statute must be brought against state officials charged with enforcing the disputed law, rather than against the state itself. And without a state official who enforces the law, there is no one for abortion providers to sue pre-enforcement; they must instead wait to be sued in state court by a private individual and assert their constitutional claims as a defense to liability in those private civil-enforcement proceedings. The private civil-enforcement feature of the law was engineered by former Stanford law professor Jonathan F. Mitchell. The idea was based on his 2018 Virginia Law Review article, "The Writ-of-Erasure Fallacy", which noted that laws enforced solely by private citizens are nearly impossible to challenge in pre-enforcement lawsuits. He later brought this idea to the attention of Mark Lee Dickson, an East Texas anti-abortion pastor, in 2019. Dickson was able to persuade the city council of Waskom, Texas, to enact an ordinance that outlawed abortion within city limits through the private civil-enforcement mechanism proposed by Mitchell, although it was mostly a symbolic move as the town had no abortion providers. Dickson then championed for similar laws to be passed in other towns and cities in Texas over the following years, including Lubbock, where a Planned Parenthood facility halted abortion procedures following passage of the local law. Mitchell helped Hughes draft the bill for the state based on the municipal ordinances he had written as a means of avoiding pre-enforcement judicial scrutiny, primarily by taking state officials out of enforcing the abortion ban and leaving enforcement entirely in the hands of private individuals. The bill was a legislative priority of Republican lawmakers for the 2021 regular session, denoted 87(R). The Senate version was approved by both houses of the bicameral Texas legislature after the Senate concurred with House amendments. Texas governor Greg Abbott signed the bill on May 19, 2021, and it took effect on September 1, 2021. == Provisions ==

The Texas Heartbeat Act contains twelve sections. Although the Act is best known for its provisions that outlaw abortion after cardiac activity has been detected, and that authorize private lawsuits against those who violate the Act, the Act includes other provisions that further restrict abortion and deter litigants from challenging abortion laws in court. It is regarded as one of the most aggressive and far-reaching pieces of anti-abortion legislation that has ever been enacted. Section 2 Section 2 of the Act declares that Texas has never repealed, either expressly or by implication, its pre–Roe v. Wade statutes that outlaw and criminalize abortion unless the mother's life is in danger. The punishment is two to five years' imprisonment for each abortion performed or facilitated, and the statute of limitations is three years. By declaring that the state's pre-Roe criminal abortion have never been repealed, section 2 overrules McCorvey v. Hill, a 2004 decision from the U.S. Court of Appeals for the Fifth Circuit, which held that Texas had implicitly repealed its pre-Roe criminal abortion statutes by enacting subsequent legislation that regulates the abortion procedure. It also ensures that all abortions performed in Texas—including abortions that occur before cardiac activity is detectable—are defined and regarded as criminal acts under Texas law, even though prosecutors in Texas cannot indict or charge abortion providers for their violations of these statutes until Roe v. Wade is overruled. The enactment of section 2 has led Texas officials to threaten abortion funds and their donors with criminal prosecution under the state's pre-Roe abortion statutes. On March 18, 2022, Representative Briscoe Cain sent cease-and-desist letters to every abortion fund in Texas, demanding that they immediately stop paying for elective abortions performed in Texas. Cain warned that these abortion funds were violating the state's unrepealed pre-Roe abortion statutes by "furnishing the means for procuring an abortion knowing the purpose intended," and that every single one their employees, volunteers, and donors could face criminal prosecution for violating the state's pre-Roe laws. Section 3 Section 3 of the Act requires a physician to test for a "fetal heartbeat" (or "cardiac activity") before performing an abortion and prohibits abortion if a "fetal heartbeat" is detected. The only exception is for when "a physician believes a medical emergency exists that prevents compliance." The term "medical emergency" is not defined in the statute. Section 3 also authorizes any private individual to sue anyone who performs or induces, or "aids and abets," a post-heartbeat abortion. Although the statute shields abortion patients from being named as defendants, anyone else who "aids or abets" an unlawful abortion can be sued in addition to the physician performing the procedure. That includes staff members at clinics, counselors, lawyers, financiers, and those who provide transportation to an abortion clinic, including drivers of a taxi or ride-hailing companies. Section 3 of the Act also insulates the state of Texas and its officials from being sued by preserving their sovereign immunity and forbidding them to enforce the statute in any way. The Act allows defendants to escape liability if they demonstrate that the relief sought by the plaintiff will impose an "undue burden" on women seeking abortions. But the Act also provides that this "undue burden" defense is unavailable if the Supreme Court overrules Roe v. Wade or Planned Parenthood v. Casey, even if the abortion occurred while those decisions were in effect, Section 4 Section 4 of the Act requires litigants who challenge the constitutionality of any Texas abortion restriction to pay the attorneys' fees of "prevailing parties" if their challenge is unsuccessful. Section 4 also imposes joint and several liability on the attorneys and law firms that sue to enjoin the enforcement of any Texas abortion law. Many clinics reported an increase in patients at their clinics who had completed the 24-hour waiting period and sought to have the procedure done before the midnight deadline. The act contains exceptions in the case of medical emergency, such as if the mother is at risk of death or severe irreversible bodily harm. It makes no exceptions for rape or incest. On September 7, 2021, Governor Abbott asserted that the Act does not force raped women to carry pregnancies to term because the state would "work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets". == Significance ==

The act is the first time since Roe v. Wade that a state has successfully outlawed abortion as early as six weeks into a pregnancy, which is often shortly after a pregnant woman misses her menstrual period. Reportedly, 37% of people seeking abortion will discover it at six weeks or later, and around 60% of abortions in the US are performed at six weeks or later. The Texas Heartbeat Act is unique in that it is enforced exclusively through civil lawsuits brought by private citizens, rather than criminal or civil penalties imposed by state officials. This was engineered to deny abortion providers the opportunity to seek federal-court injunctions against the enforcement of the statute. Since the law cannot be enforced by state officials but only by private individuals, it is difficult for abortion providers to identify the proper defendants to sue in a pre-enforcement lawsuit, which prevents them from challenging the constitutionality of the act prior to its taking effect. As one commentator explained: "Abortion clinics are now in an impossible bind because on the one hand, there is no one to sue because no state official is allowed to enforce the law, while on the other hand, there are too many people to sue because they can’t identify who among the millions of Texas pro-lifers will step forward to enforce the law." In light of this feature in the law, U.S. Supreme Court Chief Justice John Roberts wrote that "the statutory scheme before the court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime." == Academic opinions ==

The Texas Heartbeat Act is intensely controversial because it was written to frustrate judicial review and thwart the judiciary from enforcing Supreme Court precedents that declared abortion to be a constitutionally protected right. That the Act succeeded in eliminating access to pre-viability abortions in Texas while Roe v. Wade ostensibly remained the law of the land has only added to the controversy surrounding the law. Law professors that supported Roe v. Wade, such as Laurence Tribe and Michael C. Dorf, have criticized the Act and its enforcement mechanism as "cynical" and "diabolical". Opponents of abortion have praised the Act's circumvention of Roe v. Wade as "brilliant", and "genius". However, this enforcement model, if utilized in similar ways to how SB8 implements it, could be used to limit other rights and freedoms that the people enjoy including like the right to bear arms, free speech, and gay marriage. For example, in an op-ed piece for The Hill in September 2021, Alan Dershowitz, emeritus professor of law at Harvard, suggested that liberal states could enact laws offering similar bounties for citizen lawsuits against anyone who facilitates the sale or ownership of handguns. Supreme Court justices Brett Kavanaugh and Elena Kagan expressed these concerns while hearing arguments in United States v. Texas. Some analysts have argued that as wrong as SB8's utilization of private citizen enforcement is, the enforcement model itself still holds merit. They draw a distinction between the ways in which the model is utilized and the intent. In qui tam cases, private individuals bring suit alongside and in support of government officials and these suits are still under government supervision while in SB8, the Texas government would be barred from participating in the suit. The other would be the intent of the law; up until ''Dobbs v. Jackson Women's Health Organization'' was decided, the right to abortion was considered to be protected by the Constitution. While environmental pollution lawsuits seek to aid the government in dealing with cases of the law being broken, SB8 was an unprecedented instance of private individuals being granted the right to deprive another individual of a (then) federally protected right. This led one commentator to note that "Rather than a "private attorney general" statute, it is a private vigilante law". Yale's Akhil Reed Amar, and Edward Whelan of the Ethics and Public Policy Center, have argued that SB8's unique design precludes abortion providers from challenging the constitutionality of the statute in pre-enforcement litigation. Tribe has suggested ways for the United States Department of Justice (DOJ) to combat the effects of the Texas Heartbeat Act. In an op-ed published by The Washington Post on September 5, 2021, Tribe urged DOJ to prosecute any individual who sues an abortion provider under sections 241 or 242 of the federal criminal code, which make it a crime to deprive individuals of any constitutional rights. and recommended that the U.S. Attorney General launch criminal prosecutions and sue private parties under the Act on the grounds of deprivation of rights under color of law. The two also cited the precedent of ''Larkin v. Grendel's Den, Inc.'', as an argument against the constitutionality of delegating certain government decisions to private parties. At the time of writing, the DOJ had not yet acted on any of Tribe's suggestions. The private remedies authorized by SB 8 can only be awarded by a state court in a lawsuit brought under SB 8, which is why Whole Women's Health and a group of abortion providers sued a Texas judge under Section 1983 of the Civil Rights Act to enjoin him and a defendant class of all other Texas trial-level judges from entertaining SB 8 lawsuits. On September 10, 2021, a motions panel of the Fifth Circuit Court of Appeals rejected the idea that state judges and their court clerks could be sued in federal court to prevent them from hearing SB 8 cases, characterizing the approach as absurd. An analysis by Johns Hopkins along with a study by JAMA Pediatrics published in 2024 suggests SB 8 is associated with an increase in infant mortality and newborn deaths. == Legal challenges ==

Pre-enforcement litigation by providers and advocates A Dallas attorney filed a lawsuit and accompanying request for a restraining order in Dallas Texas District Court attempting to block the bill, arguing that the language of the law prevents attorneys from consulting with clients about abortion, even in cases of rape and incest, and is thus a violation of attorney-client privilege and victims rights of the sexually abused. This action was nonsuited and refiled in Travis County (Austin, Texas), where it remains pending, along with numerous companion cases by abortion providers and funders, who are all represented by the same attorneys. On September 3, 2021, a Travis County judge granted three Texas Planned Parenthood affiliates a temporary restraining order against Texas Right to Life, with a temporary injunction hearing set for September 13. The ruling temporarily blocks the anti-abortion group and affiliated individuals from suing them under the Act. Another trial court judge later signed an agreed temporary injunction order in the same case. On December 9, 2021, a retired judge, sitting by appointment of the Texas Judicial Panel on Multi-District Litigation, ruled that portions of the statute's civil enforcement mechanism violate the Texas Constitution, but did not grant a permanent injunction enjoining the law's enforcement. The plaintiffs filed an emergency application with the Supreme Court on August 30, 2021, seeking an order to block the Act from going into effect. Late on September 1, 2021, nearly 24 hours after the Act had come into force, the Supreme Court denied the motion in an unsigned order, though four Justices wrote or joined dissents that stated they would have granted the injunction pending legal evaluation. The majority opinion on the motion stressed that the denial of immediate relief did not preclude other legal challenges in lower federal or Texas state courts. The Fifth Circuit issued a second order on September 10, 2021, ruling that the state judges, clerks, and other officials were not proper defendants, while the case against the private individual remained and was to be evaluated by the Circuit court at a later date. Again, the plaintiffs filed a petition for a pre-judgment writ of certiorari at the Supreme Court based on the Fifth Circuit's order, again seeking an injunction on the enforcement of SB 8. The Supreme Court, in its related actions to United States v. Texas, denied the plaintiff's motions in WWH v. Jackson, but certified the petition for the case, and scheduled its oral arguments alongside United States v. Texas for November 1, 2021. The Supreme Court issued its decision on December 10, 2021, and dismissed the claims that Texas abortion providers had brought against a state-court judge, a court clerk, the state's attorney general, and a private citizen. The Court allowed the abortion providers' claims against state licensing officials to proceed beyond the motion-to-dismiss stage, and remanded the case back to the Fifth Circuit. In March, 2022, the Supreme Court of Texas unanimously ruled that SB 8 explicitly forbids state licensing officials to enforce the law, ending the abortion providers' federal pre-enforcement challenge to SB 8. The state supreme court's ruling, along with the U.S. Supreme Court's ruling in ''Whole Woman's Health v. Jackson'', leaves abortion providers without any possible defendants to sue in a federal pre-enforcement lawsuit challenging the constitutionality of SB 8, because there are no state officials charged with enforcing the law. The DOJ filed their suit against the state on September 9, 2021, in the District Court for the Western District of Texas, with the suit claiming "the law is invalid under the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity". The DOJ asked for an emergency motion for a temporary restraining order or a preliminary injunction of SB8 on September 15, 2021. In its defense, Texas challenged the standing of the federal government to seek remedies against private individuals and sought dismissal of their case. District judge Robert L. Pitman, who was also overseeing the WWH v. Jackson case, issued a preliminary injunction blocking enforcing of the Act on October 6, 2021, ruling that the United States government does have standing to challenge Texas' law. Texas appealed to the Fifth Circuit Court of Appeals on October 8, 2021, and in a per curiam decision that day, the Fifth Circuit put a hold on Pitman's order, "pending the court's consideration of the emergency motion". On October 14, 2021, the motions panel granted the State's and the three aligned Intervenors' motions for emergency stay in a brief order that merely referenced the decision rationales articulated by the SCOTUS and the Fifth Circuit in the pending WWH v. Jackson case. They also ordered that the appeal on the merits be jointly taken up on an accelerated basis by the same panel of the Fifth Circuit that will hear oral argument in the WWH v. Jackson appeal. The DOJ filed an application for emergency relief from the Supreme Court on October 18, 2021. On October 22, 2021, the SCOTUS declined to grant the DOJ's emergency request to lift the Fifth Circuit's stay, but did grant the petition for certiorari before judgment and set expedited oral arguments for November 1, 2021. In certifying the case, the Supreme Court limited the case to review the question of the standing raised by the state. The oral arguments for United States v. Texas will be heard alongside those for WWH v. Jackson. Justice Sotomayor concurred in the decision to hear the case on an expedited basis, but dissented on the denial of an immediate stay order in the interim. The Supreme Court ruled in a per curiam decision on December 10, 2021, to dismiss the writ of certiorari as improvidently granted. On September 20, 2021, Oscar Stilley, a former lawyer in Arkansas, filed a lawsuit against Braid for providing the abortion. Stilley told reporters that he did it in an effort to speed up the process of getting the law reviewed. Another lawsuit by Felipe Gomez of Chicago was filed against Braid the same day. Gomez argues for the law to be declared unconstitutional as the law is illegal until Roe v. Wade is reversed or modified. Both lawsuits were commenced in San Antonio in the defendant's county. One is in forma pauperis. Both plaintiffs are not averse to publicity. Both have also intervened in the federal case brought by the DOJ against Texas. Legal experts expect SB 8 lawsuits brought by pro-abortion rights plaintiffs to fail for lack of a controversy and thus standing. State-court challenges to SB8 by abortion providers and funders Texas abortion providers, funders, and other pro-abortion plaintiffs filed a total of 14 other lawsuits, some before the Act's September 1, 2021, effectiveness date, against Texas Right to Life and the organization's officers, employees, and collaborators, challenging S.B.8 as unconstitutional under various provisions of the state constitution. The plaintiffs relied on the Texas Declaratory Judgments Act and sought declaratory and injunctive relief. The separate actions were subsequently consolidated for pretrial proceedings by the Texas Judicial Panel on Multi-District Litigation (MDL Panel) and remain pending in a Travis County district court. The MDL Panel assigned the Hon. David Peeples, a senior-status judge, to preside over the 14 cases. With one exception, the 14 suits against Texas Right to Life originally also named state officials as defendants, including Governor Abbott and numerous GOP legislators, but these state officials were later nonsuited. On December 9, 2021, Judge Peeples granted some of the declaratory relief requested by the plaintiffs but did not grant a permanent injunction, leaving that issue for a trial on the merits. Texas Right to Life and its legislative director immediately appealed the denial of their motion to dismiss, which resulted in a stay of further proceedings in the trial court pending resolution of the interlocutory appeal. On May 26, 2023, the Court of Appeals, Third District upheld the District Court's denial of a motion to dismiss under Texas' anti-SLAPP act, leaving the case alive. The case style for the MDL cases is Van Stean v. Texas Right to Life, Cause No. D-1-GN-21-004179 in Travis County district court. == Aftermath ==

themed sign at a rally against the law at the Texas Capitol The anti-abortion organization Texas Right to Life established a "whistleblower reporting system" that enabled residents to anonymously report suspected violators of the bill. Their website came under denial-of-service and satirical attacks featuring copypastas and eroticized fan-art of Shrek based on the prevalent internet meme, as well as profuse non-pertinent and misleading information. On September 3, 2021, webhost GoDaddy gave the website 24 hours to find a new host before terminating their service for multiple terms-of-service violations. On September 4, the website changed its domain registration to Epik, a registrar and web hosting company known for providing services to websites which have been denied service for content policy violations by other providers. The site went offline later that day, after Epik told the group they had violated their terms of service by collecting private information about third parties; the website subsequently began redirecting users to the Texas Right to Life organization's website. A non-profit organization that supports abortion-rights announced that after the law went into effect their website traffic had increased with a large number of traffic coming from Texas. Through the site, visitors can view information about abortion pills and care providers. On September 4, 2021, The Satanic Temple, a self-described nontheistic religious and human rights group, filed a letter of complaint to the US Food and Drug Administration arguing that the law violated the constitutional rights of members to free religious practice, referring specifically to the Religious Freedom Restoration Act. In May 2024, The Washington Post reported that a Texas resident, Collin Davis, had claimed to a Texas district court that his ex-partner had obtained a legal abortion in the state of Colorado, and cited SB8 in attempting to obtain depositions from his ex-partner and people who had helped her obtain the abortion. SB8's writer, Jonathan Mitchell, acted as the lawyer for Davis. A study done in 2022 took the results from 205 women who had a bilateral salpingectomy for sterilization. These sterilizations took place 15 months prior to the passing of Texas Heartbeat Act and 15 months after the law went into effect. The results from the study showed after passing Texas Heartbeat Act the number of surgical sterilizations nearly doubled. The average age and relationship status remained consistent between the two groups. Between 2021 and 2022, a year after the Texas Heartbeat Act went into effect, a study done at John Hopkins Bloomberg School of Public Health shows an increase in infant death in Texas. In Texas alone the occurrence of congenital anomalies increased more than 22.9% between 2021 and 2022. In 2025 the Life of the Mother Act was signed. This act allows for mothers at risk of death or serious injury to have an abortion without fear of prosecution. It clarifies what is considered as life threatening and protects the doctor performing the abortion. == Reactions ==

Ride-sharing services Lyft and Uber announced that they would cover 100% of the legal defense costs for any of their drivers sued under this new law, while dating app companies Bumble and Match Group, owner of Tinder, announced they would establish a relief fund to assist Texas women seeking abortions. John Gibson, the CEO of the video game developer/publisher Tripwire Interactive, tweeted in support of the bill and the Supreme Court's decision to not block its enforcement on September 4, 2021. Over the next few days, video game journalists, other developers, and members of the players' community expressed outrage at the tweet, leading to Gibson stepping down as CEO on September 6, 2021, and Tripwire distancing itself from Gibson's statement. Protests On the day the act went into effect, protesters rallied in the Texas state capital of Austin, Texas. Women in Dallas protested while wearing costumes from ''The Handmaid's Tale, a dystopian novel about women living in a totalitarian theocracy. Other small demonstrations were organized near city halls of other Texas towns. The day after the bill was enacted, the hashtag #texastaliban, a critical reference to the Taliban, trended on Twitter with over 50,000 tweets. On September 13, the group released a large quantity of private data belonging to Epik, including domain purchase and transfer details, account credentials and logins, payment history, employee emails, and unidentified private keys. The Distributed Denial of Secrets (DDoSecrets) organization said later that day that they were working to curate the allegedly leaked data for public download, and said that it consisted of "180 gigabytes of user, registration, forwarding and other information". Publications including The Daily Dot and The Record by Recorded Future'' subsequently confirmed the veracity of the hack and the types of data that had been exposed. Protests occurred in about 600 places nationwide on October 2. They were called the 2021 Women's March. Public opinion on the law is divided, with two polls showing a narrow majority support the new legislation. One poll showed that roughly 55% of Texans support the law, compared to 45% who oppose it. Another poll showed a plurality of 46% of Texans supporting the law, while 43% remain opposed. Political reactions President Joe Biden criticized the act, describing it as "extreme" and saying it "blatantly violates the constitutional right established under Roe v. Wade". Senator Elizabeth Warren argued that it is time to "step up and codify Roe into federal law". Some Republicans, such as South Dakota governor Kristi Noem praised the act, while others (including 2021 Virginia gubernatorial candidate Glenn Youngkin and Senate minority leader Mitch McConnell) were more leery. Some other states, including Florida and Ohio, have introduced legislation with language that mimics the Texas law. On December 11, 2021, a day after the Supreme Court effectively upheld enforcement of the law in ''Whole Woman's Health v. Jackson'', Governor Gavin Newsom of California called for the state legislature to apply the legal framework from Texas' law to gun control, seeking a bill that would introduce a private right of action against manufacturers, distributors, and sellers of assault weapon or receiver blanks in the state. At the end of April 2022, the Connecticut General Assembly passed House Bill 5414, the Reproductive Freedom Defense Act, which allows anyone sued under the Texas law, or others like it, for performing or facilitating an abortion which took place at least in part in Connecticut to countersue in that state for the equivalent amount of damages, plus attorney's fees. It also prohibits the governor of Connecticut from extraditing any Connecticut resident to another state for performing an abortion legal in Connecticut, bars courts in the state from issuing subpoenas or any orders related to such enforcement in another state, and prohibits any state or law enforcement agency in Connecticut from cooperating with such investigations. In July 2022, California governor, Gavin Newsom signed Senate Bill 1327, which is modeled after the Texas law, but allows private citizens to sue a licensed firearms dealer who "sells, supplies, delivers, or gives possession or control of a firearm" to anyone under 21 years old. It allows citizens to sue for a minimum of $10,000 on each weapon involved, as well as attorney fees. Federal Judge Roger Benitez struck down part of the law related to costs and attorney's fees. In response, Governor Newsom agreed that the law he signed was unconstitutional. ==See also==