TDD #23: What is the Texas Heartbeat Act (S.B. No. 8)?

... Read on for a Rooftop Review

Welcome to another edition of The Dobbs Digest, a newsletter of Confessions of a Truthaholic.

Abortion may be the most most divisive and intractable topic in contemporary American politics. And the inflammatory rhetoric, which reached boiling point after Roe v. Wade was overturned in the summer of 2022, isn’t simmering down anytime soon. But most of what I read and hear is sky high on emotion but low on facts, so bear that in mind as you scroll.

My sole purpose with this newsletter is to question the assumptions of the media narratives shaping abortion discourse and to unpack the actual issues raised in the courts to get us to a shared understanding of the reality on the ground.

If you’re new to this newsletter, please read our welcome post here so you’re in the know. So glad to have you here!

The Infamous Texas Abortion Law

Texas abortion law has been famous since it was the subject of Roe v. Wade. And it doesn’t look like it'll be losing its notoriety any time soon. When a statute is so heavily litigated it becomes the subject of a Supreme Court opinion, the public’s understanding of the underlying facts and relevant law in increasingly attenuated each time a journo’s pen touches paper and yet another story finds itself in print. Texas’ abortion law is but one example of a statute that took on a meaning of its own.

Some Background

The Texas abortion wars began in 1970 when “Jane Roe” filed a lawsuit in Dallas, Texas against Henry Wade, the district attorney in Dallas County. In her complaint, she argued that the 1854 Texas law criminalizing abortion, except in cases to save the life of the mother, was unconstitutional. Note the abortion providers could be charged, not abortion patients. After three years of litigation, including not one, but two arguments before the U.S. Supreme Court, Roe v. Wade was decided on January 22, 1973. The final decision struck down Texas' law on the grounds it violated a woman’s “right to privacy” found in the “liberty clause” of the 14th Amendment. Here’s the liberty clause.

... nor shall any state deprive any person of life, liberty, or property, without due process of law …

Through some machinations, including an arbitrary declaration from the bench that the 14th Amendment doesn’t apply to the unborn, the high court held that a woman’s liberty includes the right to have an abortion.

FWIW - Dobbs v. Jackson simply overruled the Roe’s court’s reasoning and decision for including abortion in the concept of liberty. The Dobbs court did not address Roe’s arbitrary decision to exclude the unborn from Constitutional protection. More on that later.

Time For a New Law?

In 2021, the litigation that resulted in Dobbs v. Jackson case was making its way through the courts (the case was argued before SCOTUS on December 1, 2021). Several states, including Texas, realized that their state legislatures had never actually repealed their pre-Roe abortion statutes which would take immediate effect if Roe was ever over-ruled. So, yes, Texas’ 1854 law (the subject of Roe) was still on the books in 2021. (FYI - many 19th century laws on all manner of subjects are still on many state’s books and are fully enforceable today). Realizing this, the Texas legislature passed an updated and actually much more permissive law, the Texas Heartbeat Act, to take effect on September 21, 2021.

It remains current law today.

The Texas Heartbeat Act, Senate Bill No. 8 (S.B. No. 8)

The bottom line …

Abortion is legal in Texas:

• (1) until a fetal heartbeat is detected, and/or

• (2) a medical emergency exists (which is determined in a physician’s sole discretion), that necessitates an abortion. If an abortion is performed due to a medical emergency, the physician is required to keep written notes regarding the procedure in his/her private practice records.

Also, women are not now, nor have they ever been, prosecuted for having an abortion in Texas. Nor are they legally liable under the civil (as opposed to criminal) law. This also means that self-managed abortion (taking abortion pills at home) is legal in Texas, regardless of gestational age. An earlier post clarifies that self-managed abortion is legal nationwide.

The details …

For the detail junkies, you can read the full text of the Texas Heartbeat Act here, and/or you can read an article from the Texas State Law Library explaining the Act here.

For our purposes here, I’m going to highlight the sections of the Act that define the gestational window for permissible abortions and the Medical Emergency exception. They’re the most relevant.

Here’s the text:

Sec. 171.204.  PROHIBITED ABORTION OF UNBORN CHILD WITH DETECTABLE FETAL HEARTBEAT; EFFECT.  

(a)  Except as provided by Section 171.205 [medical emergency exceptions], a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required by Section 171.203 [this section defines presence of a heartbeat] or failed to perform a test to detect a fetal heartbeat.        

(b)  A physician does not violate this section if the physician performed a test for a fetal heartbeat as required by Section 171.203 and did not detect a fetal heartbeat.        

(c)  This section does not affect:              

• (1)  the provisions of this chapter that restrict or regulate an abortion by a particular method or during a particular stage of pregnancy; or              

• (2)  any other provision of state law that regulates or prohibits abortion.        

Sec. 171.205.  EXCEPTION FOR MEDICAL EMERGENCY; RECORDS.   

(a)  Sections 171.203 [requires test to detect heartbeat] and 171.204 do not apply if a physician believes a medical emergency exists that prevents compliance with this subchapter.        

(b)  A physician who performs or induces an abortion under circumstances described by Subsection (a) shall make written notations in the pregnant woman's medical record of:              

• (1)  the physician's belief that a medical emergency necessitated the abortion; and              

• (2)  the medical condition of the pregnant woman that prevented compliance with this subchapter.        

(c)  A physician performing or inducing an abortion under this secti00on shall maintain in the physician's practice records a copy of the notations made under Subsection (b).

Requested Clarifications …

In view of the Kate Cox debacle, which I wrote about here, and other lawsuits challenging the scope of the Medical Emergency exception, the Texas Supreme Court requested the Texas Medical Board (TMB) to provide clarifying language around the exception.

In March 2024, pursuant to the Court’s request, the TMB proposed a broad definition for what constitutes an “emergency medical exception” under the Act and updated the Texas Administrative Code (TAC) accordingly [This section of the TAC contains rules for medical providers only, not public laws]. Given the nuances and complexities in individual cases, and much to the chagrin of many abortion advocates who are actively protesting, the TMB’s definition doesn’t provide an enumerated list of qualifying emergencies since the statute expressly delegates that judgment to attending physicians.

Note #1: If you search for “texas medical board abortion guidelines” in your browser, you’ll find a .pdf of the full updates. Mine opens via Chrome extension, so the link is no good for sharing.

Note #2: Also, there are several references to the Texas Health and Safety Code and Texas Labor Code in the updated guidelines. I’ve added relevant links and the effective date of the referenced code sections for context.

Here’s the relevant text:

The Texas Medical Board (Board), TAC 22, proposes new §165.7, concerning Exceptions to Abortion Ban, §165.8, concerning Abortion Ban Exception Performance and Documentation, and §165.9, concerning Complaints Regarding Abortions Performed.

The new sections do not regulate or prohibit abortion but are promulgated to clarify the regulatory analysis to be utilized by the Board in the event that the agency receives a complaint and has to determine, what is, if any, an appropriate disciplinary action against a physician who violates other laws that regulate or prohibit abortion.

The rules reaffirm that when investigating a complaint regarding allegations of performing an abortion, the Board will investigate the complaint utilizing the standard processes that apply to every other complaint and investigation.

This clarifying language is a direct result of recent litigation and requests from private individuals and groups.

The proposed new sections are as follows:

§165.7. Exceptions to Abortion Ban.

(a) The following words and terms, when used in this section, shall have the following meanings.

• (1) "Abortion" means the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth control devices or oral contraceptives. An act is not an abortion if the act is done with the intent to:

  • (A) save the life or preserve the health of an unborn child;

  • (B) remove a dead, unborn child whose death was caused by spontaneous abortion; or

  • (C) remove an ectopic pregnancy.

• This definition is found at Chapter 245, §245.002(1) of the Texas Health and Safety Code (effective September 1, 1989).

• (2) "Ectopic pregnancy" means the implantation of a fertilized egg or embryo outside of the uterus. and removing an ectopic pregnancy is not an abortion. This definition is found at Chapter 245, §245.002(4-a) of the Texas Health and Safety Code (effective September 1, 1989).

• (3) "Reasonable medical judgment" means medical judgment made by a reasonably prudent physician, knowledgeable about a case and the treatment possibilities for the medical conditions involved. This definition is found at Chapter 170A, §170A.001(4) of the Texas Health and Safety Code (effective September 1, 1989).

• (4) "Medical emergency" means a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed. This definition is found at Chapter 171, §171.002(3) of the Texas Health and Safety Code (effective September 1, 2003).

• (5) "Major bodily function" includes but is not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This definition is found at Chapter 21, §21.002(11a) of the Texas Labor Code (effective September 1, 1995).

§165.8. Abortion Ban Exception Performance and Documentation.

(a) An abortion shall not be performed in this state unless it is performed in compliance with all provisions of Texas Health and Safety Code Chapters 170, 170A, and 171 in addition to any other applicable federal and state statutes, rules, and court opinions. (code section links above)

(b) In addition to the requirements above, the physician must specifically document in the patient’s medical record:

• (1) that the abortion is performed in response to a medical emergency;

  • (A) that places the woman in danger of death unless the abortion is performed or induced; or

  • (B) to prevent a serious risk of substantial impairment of a major bodily function of the patient unless the abortion is performed or induced;

• (2) the major bodily function(s) at serious risk of substantial impairment;

• (3) what placed the woman in danger of death, or what was the serious risk of substantial impairment;

• (4) how the danger of death or serious risk was determined;

• (5) how the decision was made to proceed with an abortion based on reasonable medical judgement including:

  • (A) what diagnostic imaging, test results, medical literature, second opinions, and/or medical ethics committees that were used or consulted; and

  • (B) what alternative treatments were attempted and failed or were ruled out;

• (6) how determination was made that performing a procedure in such a way as to give the child the best opportunity to survive would create a greater risk to the woman; and,

• (7) whether there was adequate time to transfer the patient, by any means available to a facility or physician with a higher level of care or expertise to avoid performing an abortion.

§165.9. Complaints Regarding Abortions Performed.

(a) The Texas Medical Board will review complaints and perform investigations regarding abortions using the Board’s standard complaint process.

(b) If a complaint is determined to be jurisdictional to the Board, the Board will use independent expert physicians, as provided in Texas Occupations Code, §154.0561, to review the available information, including the patient’s medical record (effective September 1, 1999).

(c) Any decision by the Board, to either dismiss the complaint or discipline the physician who is the subject of a complaint, is separate and independent of any other possible criminal or civil action under the law. If the Board is aware the licensee is subject to a pending criminal or civil action, then the Board may defer or delay action. Depending on the outcome of criminal or civil action, the Board retains authority to investigate and potentially take disciplinary action.

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That’s the meat-and-potatoes of the Texas Heartbeat Act and accompanying clarifications from pre-existing Health and Safety Code. It says what it means and it means what it says.

Also, for trivia’s sake, The Texas Constitution takes deprivation of life seriously:

Article 1: Sec. 19: DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY DUE COURSE OF LAW.

No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

(enacted February 15, 1876)

In Texas, the unborn fall within the purview of the law’s protection and are, by birthright, citizens of the state where his/her parents reside. Because the Act carves out an exception for the unborn in the earliest stages of gestation, it remains in compliance with this section.

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I’m happy to answer any questions or provide additional detail if that would be helpful. Just let me know in the comments or DMs.

This law is being attacked ad nauseum in the press (and not yet credibly), so I wanted to get it out there in black and white so you can read it and draw your own conclusions.

As always in service to the truth, the whole truth, and nothing but the truth ...

xo,

Kelley

September 29, 2024

P.S. Back soon with more legal updates and debunks.