Texas Heartbeat Act of 2021

URL https://Persagen.com/docs/texas_heartbeat_act_of_2021.html
Sources Persagen.com  |  Wikipedia  |  other sources (cited in situ)
Source URL https://en.wikipedia.org/wiki/Texas_Heartbeat_Act
Date published 2021-10-18
Curation date 2021-10-18
Curator Dr. Victoria A. Stuart, Ph.D.
Editorial practice Refer here  |  Date format: yyyy-mm-dd
Summary The Texas Heartbeat Act of 2021, introduced as Senate Bill 8 (SB 8) and House Bill 1515 (HB 1515) on March 11, 2021, and was signed into law by Governor Greg Abbott on 2021-05-19. It is the first six-week abortion ban in the United States, and the first of its kind to rely on enforcement by private individuals through civil lawsuits, rather than by the government through criminal or civil enforcement. The Texas Heartbeat Act of 2021 establishes a system in which members of the public can sue anyone who performs or facilitates an illegal abortion for a minimum of $10,000 in statutory damages.
Main article Heartbeat bill
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Texas Heartbeat Act of 2021
[Image source]
Texas Heartbeat Act
Greg Abbott at the signing of the Texas Heartbeat Act of 2021.  [Image source]
Corporate Information
Name Texas Heartbeat Act
Long title An Act relating to abortion, including abortions after detection of an unborn child's heartbeat; authorizing a private civil right of action.
Enacted 2021-05-19
Commenced 2021-09-01
Full bill S.B. No. 8  [local copy]
Introduced by Bryan Hughes
Status In force (2021-10-18)

  • This article is a stub [additional content pending ...].

  • Executive Summary

    The Texas Heartbeat Act is an act of the Texas Legislature. It was introduced as Senate Bill 8 (SB 8) and House Bill 1515 (HB 1515) on 2021-03-11, and was signed into law by Governor Greg Abbott on 2021-05-19. The law came into effect on 2021-09-01. It is the first six-week abortion ban in the United States, and the first of its kind to rely on enforcement by private individuals through civil lawsuits, rather than by the government through criminal or civil enforcement. The Texas Heartbeat Act of 2021 establishes a system in which members of the public can sue anyone who performs or facilitates an illegal abortion for a minimum of $10,000 in statutory damages.

    Eight days after the law went into effect, the United States Department of Justice filed a legal action in the United States District Court for the Western District of Texas in Austin, Texas, to challenge the Texas Heartbeat Act of 2021. The complaint argues that SB8 [State Bill No. 8] is preempted by federal law under the supremacy clause of the United States constitution and interferes with the performance of abortion-related services by federal government agencies and their contractors. Federal District Judge Robert L. Pitman issued an order blocking the law on October 6, 2021.On October 8, 2021, the U.S. Court of Appeals for the Fifth Circuit, however, put an administrative stay on Pitman's order, effectively allowing the law to remain in effect, pending further review on appeal.

    The Texas Heartbeat Act of 2021 is also being challenged in state court in multiple suits brought by abortion providers and funders, with a temporary injunction hearing scheduled for 2021-10-04. On 2021-09-23, a Lubbock, Texas news source reported that a Texas legislator, State Representative Dustin Burrows, was served with a total of 13 separate lawsuits by abortion-rights plaintiffs. The same day [2021-09-23], the Multi-District Litigation Panel for the state courts of Texas imposed a stay on all trial-court cases, pending a decision on pretrial consolidation into a single MDL court.


  • Main article: Heartbeat bill.
  • A different fetal heartbeat bill, HB 1500, was previously introduced in Texas by Phil King on 2013-07-18, in the wake of Rick Perry signing Texas Senate Bill 5 into law. The bill was not passed. The bill was jointly authored by Representatives Phil King,   Dan Flynn,   Tan Parker, and Rick Miller. As of February 26, 2019, HB 1500 had 57 sponsors or cosponsors of the 150 members of the Texas House of Representatives.

    On March 11, 2021, the Texas Heartbeat Bill (Senate Bill 8 or SB 8 for short) was introduced by Senator Bryan Hughes. A companion bill (HB 1515) was filed by Representative Shelby Slawson a day later in the Texas House of Representatives.

    The Heartbeat Bill was a legislative priority of Republican lawmakers for the 2021 regular session, denoted 87(R). Republicans hold majorities in both houses. It was included on Lieutenant Governor   Dan Patrick's list of top priorities for the 2021 legislative session. The Senate version was approved by both houses of the bicameral Texas legislature after the Senate concurred with House amendments. Governor   Greg Abbott signed the new legislation into law on May 19, 2021.

    The private civil enforcement feature of the novel type of anti-abortion legislation was engineered by Jonathan Franklin Mitchell, a former Stanford law professor, former clerk for Justice Antonin Scalia, solicitor general under Rick Perry, and member of the Federalist Society. He proposed the idea in an 2018 Virginia Law Review article, The Writ-of-Erasure Fallacy, then brought it to the attention to an East Texas anti-abortion pastor in 2019 as part of his private practice. Mitchell was able to get the law enacted at a local level in Waskom, Texas in 2019, though was mostly a symbolic move as the town had no abortion facilities. Mitchell then championed for similar laws to be passed in other towns and cities in Texas over the following years, including Lubbock, Texas - where a Planned Parenthood Federation of America facility halted abortion procedures following passage of the local law. Jonathan Mitchell helped Bryan Hughes [see also] draft the bill for the state act based on the municipal ordinances he had written as a means to avoid immediate judiciary scrutiny, primarily by taking the state out of enforcement of the abortion ban. Jonathan Mitchell also serves as an attorney for Texas Right to Life in pending litigation.

    Another related act, the Human Life Protection Act (House Bill 1280), was passed simultaneously. The bill prospectively bans all abortions in Texas, without exemption, if the Roe v. Wade precedent is overturned by the Supreme Court.

    Provisions of the Texas Heartbeat Act

    The Texas Heartbeat Act allows any person to sue someone who performs or induces an abortion, or aids and abets one, once "cardiac activity" in an embryo can be detected via transvaginal ultrasound, which is usually possible beginning at around six weeks of pregnancy.

    The Texas Heartbeat Act of 2021 defines an "unborn child" as a human fetus or embryo at any stage of gestation.

    Although an abortion patient may not be named as a defendant, anybody who provides support for an unlawful abortion can be sued in addition to the physician performing the procedure. That includes staff members at clinics, counselors, lawyers, financiers, and those who provide transportation to an abortion clinic, including drivers of taxi or ride-hailing companies. The Texas Heartbeat Act of 2021 incentivizes private enforcement by authorizing "statutory damages" of at least $10,000 in addition to court costs and attorney's fees if a defendant is proven liable. Plaintiffs are not required to have a personal connection to the patient or abortion provider in order to bring a lawsuit under SB 8.

    At midnight, immediately after the law went into effect, many clinics in Texas including Planned Parenthood stopped performing abortion procedures and stopped taking new appointments. However, many clinics reported an increase in patients at their clinics who had completed the 24-hour waiting period and sought to have the procedure done before the midnight deadline.

    The Texas Heartbeat Act of 2021 contains exceptions in the case of medical emergency but not for rape or incest. On September 7, 2021, Governor Greg Abbott asserted that the Texas Heartbeat Act does not force raped women to carry pregnancies to term because it gives them "at least six weeks" and that the state would "work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets."


    The Texas Heartbeat Act of 2021 is one of the first in the United States to outlaw abortion as early as six weeks into a pregnancy, even for a brief period of time. In Texas, an estimated 85% of abortions have been performed after the six-week mark, which is often shortly after a pregnant woman misses her menstrual period, and before many women have confirmed or are aware of a pregnancy.

    The Texas Heartbeat Act of 2021 is unique in that it is specifically designed to place the burden of enforcement on the populace through civil lawsuits rather than on state actors. This was engineered to deny abortion providers the opportunity to seek federal court injunctions against the enforcement of an unconstitutional statute by state officials. Since the law cannot be enforced by state officials but only by private individuals, there is uncertainty as to whom to sue in order to challenge the constitutionality of the Heartbeat Act of Texas prior to enforcement.

    In light of this novel feature in the law, Supreme Court of the United States Associate Justice Sonia Sotomayor wrote that "the statutory scheme before the court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime." On September 9, 2021, however, the U.S. Justice Department sued the State of Texas directly in the U.S. District Court for the Western District of Texas, seeking a declaration that the law is unconstitutional, and injunctive relief.

    A study produced by researchers at the University of Texas at Austin claimed that Senate Bill 8 would prohibit 80% of abortions in Texas and would disproportionately affect black women, lower-income women, and women who live far away from facilities that provide abortion care.

    Legal Challenges

  • See also: Whole Woman's Health v. Jackson, and United States v. Texas (2021).
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  • This article is a stub [additional content pending ...].

  • Derivatives

  • [MotherJones.com, 2021-12-12] Texans Can Sue Abortion Providers? Californians Will Sue Gun Makers, Governor Says.  Gavin Newsom says he'll copy Texas' tactic to go after weapons.

  • [NPR.org, 2021-12-12] California's governor pledges to model an assault weapons ban on Texas abortion law.

  • [theIntercept.com, 2021-12-11] Supreme Court Ruling on Texas Abortion Law Opens Door to Copycat Schemes Everywhere.  By leaving the law in place and barring meaningful ways to challenge it, the court greenlighted state efforts to overturn constitutional rights.  |  10 percent of the U.S. population of reproductive age lives in Texas.  |  "Abortion providers face calamitous liability."  |  “This choice to shrink from Texas’s challenge to federal supremacy will have far-reaching repercussions.”  |  The court has overturned its precedents in the past — but only in cases where its decision actually granted individuals broader constitutional rights.

  • This article is a stub [additional content pending ...].
  • Additional Reading

  • [📌 pinned article] Mitchell, Jonathan F. (2018) The Writ-of-Erasure Fallacy. 104 Va. L. Rev. 933.  |  local copy

  • [Vox.com, 2021-11-29] How the Supreme Court could overrule Roe v. Wade without overruling Roe v. Wade.  Dobbs v. Jackson Women's Health Organization is an existential threat to Roe - even if the Court doesn't use the words "Roe v. Wade is overruled."

  • [NPR.org, 2021-11-15] How the Texas ban on most abortions is harming survivors of rape and incest.

  • [Truthout.org, 2021-10-18] DOJ Will Ask Supreme Court to Place Stay on Texas's 6-Week Abortion Ban

  • [NPR.org, 2021-10-16] Why the Salesforce CEO wants to redefine capitalism by pushing for social change.  When Texas enacted a controversial ban on most abortions in September, Salesforce CEO Marc Benioff sent a message to his staff in the state, punctuated with a heart emoji. "Ohana if you want to move we'll help you exit TX. Your choice," Benioff wrote in a tweet - using Ohana, the Hawaiian word for family. ...

  • [CommonDreams.org, 2021-10-09] 'Stop This Madness': Outrage After Appeals Court Reinstates Texas Abortion Ban.  Packed with Trump appointees, the 5th Circuit's ruling was denounced as "unconscionable" by reproductive rights advocates. Reproductive rights advocates lashed out overnight following a ruling by the 5th Circuit Court of Appeals which reinstated a near-total ban on abortion in Texas just days after a separate federal court had placed the state's law on hold pending final judicial review, most likely by the U.S. Supreme Court. ...

  • [CTVNews.ca, 2021-10-06] Judge orders Texas to suspend new law banning most abortions.

  • [NYTimes.com, 2021-09-12] Behind the Texas Abortion Law, a Persevering Conservative Lawyer.

  • [DCReport.org, 2021-09-28] Jonathan F. Mitchell: Meet the Most Dangerous Man in America.  If You're a Woman, Gay, Trans or Just About Anyone but a Gun-Totting White Male, He Wants to Take Away Your Rights ... and, So Far, He's Winning.

  • [CommonDreams.org, 2021-09-18] Architect of Texas Abortion Ban Takes Aim at LGBTQ+ Rights While Urging Reversal of Roe.  "Make no mistake, the goal is to force extreme, outdated, religious-driven values on all of us through the courts."  |  "... women can 'control their reproductive lives' without access to abortion; they can do so by refraining from sexual intercourse" -- Jonathan Mitchell  |  "All anti-LGBTQ and anti-choice views stem from the same desire to control bodies." -- Zack Ford,   Alliance for Justice

  • [NYTimes.com, 2021-09-12] Behind the Texas Abortion Law, a Persevering Conservative Lawyer.  Jonathan Mitchell has never had a high profile in the anti-abortion movement, but he developed and promoted the legal approach that has flummoxed the courts and enraged abortion rights supporters.

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