Texas Gov. Greg Abbott on Wednesday signed into law a bill that bans abortion the moment a fetal heartbeat has been detected, a move that makes Texas the largest state in the nation to outlaw abortion so early in a pregnancy.
The Texas law effectively prohibits any abortion after around six weeks of pregnancy — before many women are even aware they are pregnant.
The bill, which takes effect in September, makes no exception for pregnancies that are the result of rape or incest but does include a rare provision that allows individual citizens to sue anyone they believe may have been involved in helping a pregnant individual violate the ban. The provision cannot be used against pregnant people, but reproductive rights advocates warn it can be used to target abortion providers and abortion-rights activists.
The use of lawsuits by private citizens may make the measure harder for abortion providers to fight, NPR member station KUT reported.
Amy Hagstrom Miller, president and CEO of Whole Woman's Health, said the law will put providers through "more legal chutes and ladders until we can figure out a strategy to try to block it" and called it unconstitutional.
"Usually, when a state is in charge of enforcing a law, it's more clearcut who can sue to stop the law's enforcement," KUT reported. "Since almost anyone can enforce a law with a civil suit, SB 8 could be harder to block."
In a letter to lawmakers last month, a coalition of more than 300 Texas attorneys raised constitutional concerns about the language of the legislation, saying the civil lawsuit provision "weaponizes the judicial system" and warning it could subject Texans to harassment and abuse through the legal system.
During a signing ceremony with anti-abortion-rights activists, Abbott, a Republican, cheered the bill, saying, "Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion."
"In Texas, we work to save those lives," Abbott said. "And that's exactly what the Texas Legislature did this session."
The new law adds Texas to a growing list of states with conservative leaders that have passed increasingly restrictive abortion laws as part of an effort to challenge the Supreme Court's 1973 Roe v. Wade decision and other U.S. Supreme Court precedent guaranteeing the right to an abortion.
The latest development on that front came Monday when the high court said it would consider a Mississippi law that bans most abortions after 15 weeks — before what is known as fetal viability. The court has previously said states cannot impose an "undue burden" on a woman's right to an abortion before viability.
But with the death of Justice Ruth Bader Ginsburg last year and the confirmation of Justice Amy Coney Barrett, conservatives now hold a 6-3 majority on the court and have begun signaling new willingness to reconsider precedent.
If the court rules to let the Mississippi law stand, abortion-rights supporters fear, it could create a foundation for even more restrictive measures, including the law in Texas, to stand.
One of the groups challenging the Mississippi law, the Center for Reproductive Rights, called the Texas measure "draconian" and said it was "currently considering all legal options" to prevent it from taking effect.
"Texas is inviting anti-abortion protestors to police abortion clinics and harass providers, even though the state knows that these kind of bans are unconstitutional," said Elisabeth Smith, the center's chief counsel of state policy and advocacy, in a statement. "The goal of this law is to saddle doctors and clinics with so many lawsuits that they have no resources left to stay open."
Texas currently bans abortion after 20 weeks, but in the early months of the pandemic the state moved to ban the procedure in almost all cases in what the governor described as an effort to preserve medical supplies and resources. The move resulted in states across the Southwest reporting an influx of patients from Texas until the Supreme Court in January vacated a pair of lower court rulings upholding the ban.
More than 56,000 abortions were performed on Texas residents in 2019, according to The Texas Tribune, most of them in the first trimester.
In a statement, Texas Right to Life praised the new law as a "landmark victory" and a "vital step in the road to abolishing all abortions in Texas."
Planned Parenthood Texas Votes and the Planned Parenthood Action Fund released a statement condemning the law as "dangerous" and among the "harshest abortion bans in the country."
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Texas is trying a new strategy for banning abortion in the earliest weeks of pregnancy. Several states have passed laws banning abortion around six weeks, only to have them struck down in federal court. But Texas has a different approach. As NPR's Sarah McCammon reports, the bill signed into law by Texas Governor Greg Abbott is designed to be enforced not by the government, but by private citizens.
SARAH MCCAMMON, BYLINE: In the past couple of years, a growing number of states, mostly in the Midwest and South, have been passing what supporters call heartbeat bills. They ban abortion as soon as cardiac activity is detectable. That's before many people know they're pregnant, which courts have repeatedly said violates decades of Supreme Court precedent. Rebecca Parma is with Texas Right to Life.
REBECCA PARMA: This strategy, so far, has not been working, so we want to try something new anyway.
MCCAMMON: Parma says she's encouraged by the news this week suggesting the Supreme Court may be ready to reconsider its precedent on abortion. The court announced it will take up a Mississippi law banning most abortions at 15 weeks. But for now, Parma is putting her hopes on what she describes as a parallel strategy. The Texas law tries a new way of enforcing an early abortion ban - through individuals filing civil lawsuits.
PARMA: So essentially, if an abortion is illegally performed on a child after the heartbeat's detectable, it's the responsibility of Texans to enforce the law.
MCCAMMON: The law, set to take effect in September, imposes penalties starting at $10,000 on anyone who performs an abortion in violation of it or, quote, "aids or abets" one. It has no exception for rape or incest. Parma hopes that will deter doctors from performing illegal abortions and anyone else from helping a woman get one.
PARMA: You know, if she ends up telling someone or sharing that with someone, then that's a way we can know. And a Texan could bring a lawsuit.
MCCAMMON: That worries advocates like Kamyon Conner, executive director of the Texas Equal Access Fund, which helps low-income people pay for abortions.
KAMYON CONNER: These are people in Texas that give money because they know that our government is not taking care of the most vulnerable. And they want to waste our resources on legal fees and attorneys and waste our time.
MCCAMMON: Elizabeth Sepper, a law professor at the University of Texas at Austin, says this could lead to a rush of lawsuits from anti-abortion rights activists.
ELIZABETH SEPPER: It would be incredibly burdensome on the abortion rate. It would probably grind abortion provision to a halt in the state of Texas.
MCCAMMON: She says the uniquely written legislation appears designed to at least temporarily sidestep the kinds of legal challenges that have led courts to quickly block early abortion bans in other states. Jessica Arons is with the ACLU, which has successfully fought several of them.
JESSICA ARONS: Not only are they trying to kind of tee up this direct challenge to Roe v. Wade in the courts, but at the same time, they're trying to do an end run on the Constitution. And they're trying to do indirectly what they suspect they might not be allowed to do by the courts directly.
MCCAMMON: In a letter to lawmakers, a coalition of more than 300 Texas attorneys raised constitutional concerns about the legislation. They said the civil lawsuit provision, quote, "weaponizes the judicial system" and warned that it could subject Texans to harassment via the courts. Abortion rights opponents say it's part of their larger strategy aimed at ending abortion in as many states as possible. Janet Porter is president of Faith2Action, an Ohio-based group that's promoted early abortion bans nationwide.
JANET PORTER: Each one of these finely crafted arrows is being launched through the court system to deliver what I believe will be the fatal blow to Roe v. Wade.
MCCAMMON: The Supreme Court says it will focus narrowly in the Mississippi case on whether states can prohibit abortion before a fetus is viable, which could ultimately enable Texas and other states to ban it altogether.
Sarah McCammon, NPR News.
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