What does Senate Bill 8 say about abortions?

What is Senate Bill 8?

Senate Bill 8 is also known as the Texas Heartbeat Act. It prohibits a physician from performing or inducing an abortion after a "fetal heartbeat" has been detected. The law makes exceptions for medical emergencies.

This law did not make performing or inducing an abortion a crime. Instead, it allows civil lawsuits against a physician who provides or induces such an abortion. Section 171.208 of the Texas Health and Safety Code 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.

Please note that a separate piece of legislation, which enacted Chapter 170A of the Texas Health & Safety Code, does make providing an abortion a crime in most situations.

Most of the changes made by SB 8 can be found in Chapter 171 of the Texas Health and Safety Code. In particular, it added Subchapter H, Detection of Fetal Heartbeat. Details about the passage of SB 8 are on the Texas Legislature's website. It went into effect on September 1, 2021.

Detection of "fetal heartbeat"

Some people believe that the bill prohibits abortions after 6 weeks. The bill does not state a specific stage of pregnancy after which a physician cannot perform an abortion. Instead, the bill prohibits a doctor from providing an abortion 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.

Under Sections 171.203 and 171.204 of this law, physicians must test for a "fetal heartbeat" before performing or inducing an abortion. If they detect one or fail to test for one, they cannot proceed with performing or inducing the abortion.

A physician may proceed with performing an abortion once a "fetal heartbeat" is detected only if they believe a medical emergency exists. Section 171.205 requires the physician to document the emergency in both the patient's and the physician's medical records.

Civil liability for violation

Under this law, you cannot sue someone who received an abortion. Instead, Section 171.208 permits anyone who is not a government employee to file a lawsuit against a person who:

• Performs or induces an abortion in violation of this law;
• Knowingly “aids or abets” performing or inducing an abortion in violation of the law; or
• Intends to do either of the above actions.

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. This will likely be a question for the courts to decide. An example included in the law itself is "paying for or reimbursing the costs of an abortion through insurance or otherwise."

If the lawsuit is successful, Section 171.208  instructs the court to award injunctive relief, an amount not less than $10,000, and court costs and attorney's fees to the person who files the lawsuit.

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

When the law first went into effect, there were many lawsuits filed attempting to block it. The challenges were unsuccessful. Some notable lawsuits challenging SB 8:

• Whole Woman's Health v. Jackson, 595 U.S. ___ (2021). Summary from SCOTUSblog.
• United States v. State of Texas, 1:21-cv-00796, (W.D. Tex.). Summary from the Austin-American Statesman.
• Davis v. Sharp, 1 :22-cv-00373-RP, (W.D. Tex.). Summary from the Texas Tribune.

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