What in the Yee-Haw is Going On With Texas’s New Abortion Ban?


Photo Credits: Antonio Perez/Chicago Tribune

Texas has been fighting a self-sustained battle against abortion and the pro-choice movement for decades. Finally, it seems that their 87th legislature has victoriously enacted its most restrictive state-wide abortion ban on September 1st, 2021. Fueled by the concept that life begins at conception, Texas Senate Bill 8, more commonly known as the Texas Heartbeat Act, has quickly become notorious for its most prevalent limitation; abortion is banned after 6 weeks of pregnancy. However, this is not the only dangerous restriction put in place by the bill.

Prior to Roe v. Wade, abortion was illegal in Texas, however, following the Supreme Court’s decision to declare that a woman’s right to choose was protected by the constitution, Texas lawmakers nonetheless persisted in their attempt to preserve fetal life. 48 years later, Senator Bryan Hughes had finally found the loophole needed to bring this Act to life. Once brought to Texas legislatures, it was signed into law by Governor Greg Abbot, allowing Texas Republicans to win a victory in the movement to protect all fetuses with a detectable heartbeat. 

So… what exactly does the Texas Heartbeat Act entail and how will these restrictions affect women?

  • Abortion is banned after 6 weeks of pregnancy unless a medical emergency is present.

 When accounting for the sheer complexity of women’s anatomy, this timeline sets women up for forced pregnancy and is designed to make getting an abortion basically impossible. 

According to the American Pregnancy Association, pregnancy is determined from the first day of a woman’s last menstrual period. If we calculate how long a woman has been pregnant based on her last menstrual cycle, it can take up to two weeks or more for a woman to realize she has missed her period and therefore, has a possibility of being pregnant. Along with this, pregnancy tests recommend waiting until the week after a woman misses her period for the most accurate results. This means that realistically, the earliest most women will be able to accurately tell if they are pregnant is the 3rd or 4th week, giving them less than 25 days to successfully get an abortion afterward. On top of all this, she would then need to book appointments at one of Texas’s few abortion clinics, there being roughly only 20 in the entire state, a number dwindling every day because of the risk they might be sued at any moment by any suspecting citizens. And lastly, make a huge decision that will alter the course of her life, all in a matter of a few days.

  • Physicians must use reliable methods to detect a fetal heartbeat in order to refuse to perform the abortion 

First off, the term “fetal heartbeat” is not medically recognized, instead, doctors refer to this activity as a fetal heart rate due to the fact that a heart has not completely developed enough to “beat” as a fully grown heart would. Journalist Maggie Astor told the New York Times that “this definition includes electrical activity in developing cells that starts at around six weeks gestation, though there is no heart at that stage of development.” Dr. Villavicencio, lead for equity transformation at the American College of Obstetricians and Gynecologists also told the New York Times that the electrical activity detected from the ultrasounds, labeled as “heartbeats” is actually not the fetus’s heart. She explained that this sound is not a true heartbeat and does not indicate that the pregnancy is viable.

Secondly, in order for physicians to be able to detect a “fetal heartbeat”, they must perform intrusive tests such as transvaginal ultrasound, a regular ultrasound could be considered inaccurate. This rigid system must be in place to ensure doctors can not refute whether a “heartbeat” was confidently heard or not. To give an example, if a doctor were to simply listen to the mother’s belly with a stethoscope and claim to have not heard the fetus’s “heartbeat”, citizens can sue them with the defense that the physician was lying or purposely not looking in-depth enough in order to allow the mother to have the abortion

  • There are no exceptions for rape, incest, nonviable pregnancies, or if the fetus has a fatal or untreatable condition/illness

Although the percentage of abortion due to rape or incest is extremely low, Texas has spared no mercy for these victims. Women who are raped did not choose or want to have sex, and women who are victims of incest are more often than not, also victims of sexual and emotional abuse by the perpetrator. If these women could not consent to have sex, they should not be forced into consenting to have a child.

When taking a look at nonviable pregnancies, Dr. Hibler Carlos, Dr. Grechukhina, and Dr. Sfakianaki from Contemporary OB/GYN concluded that early pregnancy loss, or a nonviable pregnancy “occurs in 15% of all clinically recognized pregnancies.”  However, no matter what stage the pregnancy is at, or whether or not the fetus has an untreatable fatal defect, the woman must carry the pregnancy to birth or until she naturally miscarries according to this new law. Elizabeth Nash, state policy analyst for the Guttmacher Institute, a research organization that supports abortion rights told the New York Times that the exceptions for “medical emergency” are narrowly drawn. They will terminate the pregnancy if the mother’s life is in danger or it will lead to irreversible damage to a major bodily function; however, “health providers will be very conservative about interpreting the law because they don’t want to cross a line.” Along with this, journalists Gabriela Weigel, Laurie Sobel, and Alina Salganicoff report that “under less common circumstances, however, fetal cardiac activity may be present during cases of miscarriage,” this would prevent abortion procedures from being used. They explain that “for example, a patient with a pre-viable fetus at 20 weeks gestation may have a completely dilated cervix (meaning the pregnancy loss is inevitable) and be bleeding significantly, but denied surgical management until the fetus no longer has a heartbeat or until the situation is life-threatening.” This forces a mother to naturally miscarry instead of getting an abortion.

  1. Anyone who performs or assists (despite how small their contribution is) to an abortion can be sued by fellow citizens.

Along with the promise of being an everyday hero, the state will award $10,000 to people who are successful in suing those who abet in abortions as well as have their legal fees waived. Journalist Alan Feuer referred to this system as a bounty hunt, pointing out that this new Act gives citizens “financial incentive” to seek those who have aided in an abortion. This particular addition to the abortion ban ups the stakes 10 fold, not only for doctors who physically perform the abortion but even down to the unsuspecting uber driver who drove a woman to the nearest Planned Parenthood. With the limited number of clinics and physicians available to provide abortions to women, the risk of being sued by anyone who has a suspicion that an unlawful abortion occurred causes many clinics to stop providing abortions, making resources even more limited than before. 

A common misconception with the Texas Heartbeat Act is that there is still a chance for women to be able to get an abortion after all these restrictions are put in place. Theoretically, yes; but with the combination of irregularities in menstrual cycles, pregnancy test results, doctor appointments, ultrasounds, and lack of access to clinics, the chances of successfully getting an abortion are next to impossible. To give credit to Senator Bryan Hughes, he wrote an incredibly difficult law to sue in courts by placing all the policing of abortions to citizens. The state can’t sue a physician for providing an abortion, but the 29 million other people living in Texas can. The broad language used in the law purposely made it incredibly open-ended, leaving all the responsibility to enforce it in the hands of everyday citizens. 

On top of this, the law is most damaging to already vulnerable populations, women of color, and of low-income households.  Nicole Huberfeld from the School of Public Health Edward R. Utley Professor of Health Law, Ethics, and Human Rights and a School of Law professor of law said, “The thing that often gets lost in these discussions is the real-world implications, especially for already vulnerable populations. Frankly, it is poor women who will suffer the most from these kinds of decisions…  It is poor women who will suffer the most from this decision.”

The road ahead is looking very bleak. Now that Texas opened Pandora’s Box, other states are soon to follow suit in widespread bans of abortion. It’s not hard to picture a majority of southern states soon becoming completely abortion-free. Not only does this affect the women in Texas, but nationwide the repercussions of setting a precedent that a woman’s body is no longer her own; allowing for even more vulnerability when it comes to her personal freedom. Now the consequences of her personal life choices will not only affect her but those around her. A brutal restriction on Texas women and a major setback in women’s rights nationwide, the Texas Heartbeat Act leaves freedom and control in the hands of those who are privileged enough to never have to worry about being in the same situation.