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Thirteen states have enacted so-called “fetal heartbeat” laws banning abortions once embryotic cardiac activity can be detected. Courts have enjoined their enforcement as unconstitutional. However, on September 1, 2021, the Supreme Court declined to block a Texas fetal heartbeat law, which virtually eliminates access to abortion services. Texas Governor Greg Abbott signed SB8 into law on May 19th, with an effective date of September 1st. The law essentially prohibits abortion after 6 weeks of gestational age, before most women know they are pregnant.

Texas’ fetal heartbeat law has a unique feature. It empowers private individuals to bring civil lawsuits not just against physicians but also against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion,” regardless of whether the person knew the abortion was unlawful. It includes “reimbursing the costs of an abortion through insurance.” The language is so broad that it could cover a friend, clergyman, or even a driver who counsels a woman or transports her to an abortion clinic. SB8 goes further, imposing liability if the person even “intends to engage in the conduct.” Any citizen may bring a civil lawsuit and, if successful, violators are required to pay damages of $10,000 or more for each abortion, along with costs and attorney’s fees. SB8 therefore leaves the law’s enforcement not to state officials, but to private individuals, who are rewarded with damages.

Publication Citation

The Journal of the American Medical Association Health Forum, published online September 23, 2021, at E1-E2.