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What is Senate Bill 8?

Senate Bill 8, also known as the Texas Heartbeat Act, is a Texas law that prohibits a physician from performing or inducing an abortion after a "fetal heartbeat" has been detected. The law makes exceptions for medical emergencies. It allows private citizens to sue anyone who performs or induces an abortion in violation of the law. It also allows lawsuits against anyone who "aids and abets" an abortion in violation of the law.

Most of the changes made by SB 8 are within Chapter 171 of the Texas Health and Safety Code. In particular, it adds Subchapter H, Detection of Fetal Heartbeat. This bill went into effect on September 1st, 2021. Details about the passage of SB 8 are on the Texas legislature's website. The bill analysis from the House Research Organization summarizes the bill.

Detection of "Fetal Heartbeat"

Some people believe that the bill prohibits abortions after 6 weeks. The bill does not state a specific time period after which abortions are banned in Texas. Instead, the bill prohibits abortions after the detection of a "fetal heartbeat." Section 171.201 defines this term as "cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac." This usually appears around 6 weeks into a pregnancy.

Section 171.203 requires a physician to test for a "fetal heartbeat" before performing or inducing an abortion. Physicians cannot perform abortions if they find a "fetal heartbeat," according to Section 171.204

(a) Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required by Section 171.203 or failed to perform a test to detect a fetal heartbeat.

(b) A physician does not violate this section if the physician performed a test for a fetal heartbeat as required by Section 171.203 and did not detect a fetal heartbeat.

Section 171.205 creates an exception if a physician believes a medical emergency exists. The physician is required to document the emergency in both the patient's and the physician's medical records.

Enforcement

SB 8 does not create any misdemeanor or felony offenses related to abortions. It does not make abortion after the detection of a "fetal heartbeat" a crime. SB 8 prohibits state and local government employees from enforcing or threatening to enforce the law.

Instead, the law is enforced exclusively through civil suits filed by private parties, according to Section 171.207:

(a) Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.

Civil Liability for Violation

This bill does not allow lawsuits against a person who has had an abortion. However, Section 171.208 permits anyone who is not a government employee to file a lawsuit against a person who:

(1) performs or induces an abortion in violation of this subchapter;

(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter;

(3) intends to engage in the conduct described by Subdivision (1) or (2).

The bill does not provide a definition of "aids or abets," so it's difficult to say what conduct a person could be sued for. Section 171.208 also instructs the court to award injunctive relief, an amount not less than $10,000, and court costs and attorney's fees if the person who brings the lawsuit is successful:

(b) If a claimant prevails in an action brought under this section, the court shall award:

   (1) injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;

   (2) statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted;

   (3) costs and attorney's fees.

A person has 4 years to bring a lawsuit under this law. SB 8 specifies that these provisions apply only to abortions performed or induced after September 1, 2021.

Legal Challenges

It is unclear how the courts will interpret these new statutes. Lawsuits have already been filed attempting to block or limit the new laws. Recent developments include:

  • September 1, 2021. The U.S. Supreme Court rejected a request to block the new law's enforcement. Four justices dissented. You can find an explanation of the court's rejection in a recent post from SCOTUSblog, an independent blog that follows the U.S. Supreme Court.
  • September 9, 2021. The U.S. Justice Department sued the state of Texas in federal court to block enforcement of the new law.
  • October 6, 2021. U.S. Western District Judge Robert Pitman issued an injunction that temporarily blocks the new law while the case proceeds through the federal court. A copy of the ruling is available through Court Listener, an online archive of court documents provided by the Free Law Project.
  • October 8, 2021. Texas filed an appeal at the Fifth Circuit Court of Appeals, which granted an administrative stay, effectively reinstating the new law while the case is being appealed.
  • October 14, 2021. A panel of three judges from the Fifth Circuit Court of Appeals ruled 2-1 to grant a stay of District Judge Robert Pitman's injunction while the case is appealed. This allows the law to remain in effect during the appeal.
  • October 22, 2021. The U.S. Supreme Court agreed to review legal questions about SB8 but did not block the law during this appeal. It remains in effect. Oral arguments were set for November 1, 2021. 

More Information

At this time there are few official legal resources that help explain the law. Several news articles help explain this new law and answer common questions. For example, see Texas Monthly's article Your Questions About the New Abortion Law, Answered and the Texas Tribune's article annotating the new bill. We encourage you to check with multiple news sources for coverage of how the new law works.

As librarians, we can't determine how the new law will apply to a particular situation or offer an explanation of how a lawsuit filed under this chapter would proceed. It would be best to talk to a lawyer to help answer questions about how the new law would apply. Check out our Legal Help guide for information on finding legal aid and assistance.

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