Understanding the TX Heartbeat Abortion Ban


Texas passed a bill which made abortion performed after 6 weeks (when a heartbeat can be detected) illegal and subject to civil penalties. Abortion providers immediately asked SCOTUS for an injunction to prevent it from taking effect until it's constitutionality was determined, but SCOTUS declined. Everyone and his brother is screaming about "what this means," so here is what you need to know.


The Texas "Heartbeat bill" restricts abortions to the first six weeks of pregnancy. The law allows a private citizen — from anywhere in the country — to bring a civil suit against anyone who assists a pregnant woman procure an abortion in violation of the ban. That includes whoever pays for it, coerces her, drives her to it, counsels her that it will interfere with her education, athletics or career, or provides the referral to the clinic. The Supreme Court chose not to stay the bill (like it has for other states) in particular because the state Legislature designed the law to prevent government officials from directly enforcing it.


Under the Texas law, doctors, clinic staff members, counselors -- literally anyone who participates in helping a woman obtain an abortion beyond six weeks of pregnancy would be civilly, not criminally, liable. No one is going to jail, but it could cost them a chunk of money. To bring a lawsuit, a plaintiff doesn't need to have any personal connection to the people involved or show they have any injury from it. If they win, they're entitled to $10,000 as well as recovery of their legal fees. If they lose the civil lawsuit, the law prevents the defendant from recovering legal fees. So even if a defendant isn't found civilly liable for helping a woman obtain the illegal abortion, they are still going to to use resources to defend themselves. Clearly this law makes it financially untenable for anyone to provide abortions after six weeks in Texas.


In a unique approach to making abortion less desirable and less acceptable, the Texas law is not directed at the pregnant woman. Instead it says:

Any person, corporation, or entity that commits an unlawful act [provides an abortion after 6 weeks]… other than the mother of the unborn child that has been aborted, shall be liable in tort to the unborn child’s mother, father, grandparents, siblings and half-siblings. The person or entity that committed the unlawful act shall be liable to each surviving relative of the aborted unborn child for: (a) Compensatory damages, including damages for emotional distress; (b) Punitive damages; and (c) Costs and attorneys’ fees.


Texas essentially delegated enforcement of the abortion ban to the populace at large, and consequently insulated the state from the responsibility of enforcing the law. While SCOTUS declined to grant an injunction against the law taking effect, the dissenting justices indicated that the law was designed to make it almost impossible to hold government officials accountable for violating "abortion access" laws in court.



What The Law DOESN'T Mean

  • It doesn't mean that women who abort will go to jail. There are no penalties levied against the woman seeking the abortion.

  • It doesn't mean abortion providers or facilitators will go to jail. They may have hefty legal fees defending themselves against civil suits, but they will not go to jail.

  • It doesn't mean Roe v. Wade will be overturned when this law is eventually adjudicated. Maybe, but it's more likely to have a ruling based on procedural grounds than its constitutionality.

  • It doesn't mean rapists can challenge an abortion through a lawsuit. Lawmakers adopted an amendment which prevents individuals who impregnated a woman through rape, sexual assault, or incest from suing.

  • But to be honest, it doesn't necessarily mean fewer women will abort. It is much more likely there will be an uptick in Texas women who abort sooner, or who pay for abortions unnecessarily. Expect to see Planned Parenthood take advantage of the fact that many women won't even know for certain if they are pregnant before six weeks to encourage taking emergency contraception or at-home chemical abortions that they may or may not need as one way to make up for the revenue loss created by the ban. And there will probably be more women who drive to New Mexico or Nevada where abortions are unrestricted.

All-in-all the Texas ban is a new tactic in a long line of strategies intended to stop unborn human persons from being slaughtered for money, without directly demonizing the pregnant woman. She is also a victim. She may have hormones impairing her normal rationality, or interested parties bringing additional pressure. She may be unable to accurately assess her ability to carry or her access to resources. Instead of society doing everything possible for her life, education or career to move forward in spite of an unexpected pregnancy, she will be sold a medical service which has proven physical, emotional, spiritual, and often relational consequences that may last a lifetime. And the rest of us will lose another potential playmate, coworker, companion, spouse, artist, scientist, educator and friend.

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