Explainer: What you should know about the Texas Heartbeat Act and the Supreme Court
By / Dec 13

Last week the Supreme Court of the United States (SCOTUS) issued two rulings dealing with Texas’ Senate Bill 8 (SB 8), or the Texas Heartbeat Act.  In Whole Woman’s Health v Jackson, the court considered whether the petitioners (abortion providers) may pursue a pre-enforcement challenge to SB8. In United States v. Texas the court addressed the federal government’s separate challenge of SB8. 

SB 8, which prohibits physicians from “knowingly perform[ing] or induc[ing] an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child” unless a medical emergency prevents compliance, was allowed to go into effect in September, after SCOTUS declined to issue an injunction requested by abortion providers in Texas. This challenge, known as Whole Woman’s Health v. Jackson, made its way back up to SCOTUS in the October docket, to determine if abortion providers may challenge the constitutionality of SB8. 

Last week, the court issued its opinion in Whole Woman’s Health v Jackson, concluding “that a pre-enforcement challenge to SB 8 under the Federal Constitution may proceed past the motion to dismiss stage against certain of the named defendants but not others.” The ruling stated that some of the named defendants in the case, including specific judges and clerks, could not be sued for enforcing SB8 under the doctrine of sovereign immunity, which protects government actors from being sued for carrying out their duties. Other defendants in the case, including Texas Medical licensing officials, are allowed to be sued. 

Ultimately, the ruling means that for now SB 8 still stands, but abortion providers are now able to continue to challenge the law in the lower courts. The opinion by Justice Gorsuch stresses “the ultimate merits question” of whether the Texas law is constitutional “is not before the Court.”  

At the same time, the Court also released its opinion in United States v Texas. The case originated on Sept. 9, when U.S. Attorney General Merrick Garland announced the Department of Justice was filing suit in federal court against the state of Texas over SB 8. The suit sought a “declaratory judgment that (the law) is invalid under the Supremacy Clause and Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity.” The suit sought to enjoin the “State of Texas, including its officers, employees, and agents, including private parties” who would bring a suit under SB 8. 

The court ruled that the federal challenge of SB 8 “as improvidently granted,” meaning the court should not have initially accepted the case. 

What does the law do?

SB 8 bans abortion once a fetal heartbeat is detected, which typically occurs anywhere between five and eight weeks into a pregnancy. There are no exceptions made for rape or incest, but there is an exemption made for “medical emergencies.”

The Texas Legislature passed SB 8, and Gov. Greg Abbott signed the legislation into law in May. The bill took effect on Sept. 1, 2021. Of note, ERLC trustee Kelly Hancock, a state senator in Texas, was a primary sponsor of this legislation.

What makes this different from other attempts to limit abortion?

A number of states have introduced fetal heartbeat bills, but until now, they have been blocked by the courts. While the Texas Heartbeat Act’s aim is similar to the other heartbeat bills, the enforcement mechanisms are different.

The law takes a novel legal approach to limit abortion by tasking enforcement of the measure “exclusively through private civil actions.” Essentially, the law allows any private citizen to bring a civil lawsuit against any individual who “performs or induces” an abortion, or “knowingly engages in conduct that aids or abets” an abortion, including the payment for or reimbursing the costs for an abortion. Individuals who prevail in their lawsuit will be awarded “statutory damages in an amount of not less than $10,000.”

Rebecca Parma, a senior legislative associate with Texas Right to Life, notes, “No heartbeat law passed by another state has taken this strategy. Additionally, the bill does not punish women who obtain abortions.” 

What does this mean for the Court’s abortion jurisprudence?

The Court recently heard a challenge to Mississippi’s ban on abortion at 15 weeks in a case titled Dobbs v. Jackson Women’s Health Organization. However, Mississippi has asked the Court to completely overturn both the Roe v. Wade and Planned Parenthood v. Casey decisions that have protected abortion for the last 50 years. The Court’s decision to not intervene in this instance, where a state law circumvents Roe, could reasonably be seen as an indication the new conservative majority may change direction as it relates to abortion. However, there are still several challenges to SB 8 working their way through the court system that could affect the law.

The ERLC submitted an amicus brief in the Dobbs case stating that the U.S. Constitution “does not create a right to an abortion of an unborn child before viability or at any other stage of pregnancy. An asserted right to abortion has no basis in constitutional text or in American history and tradition.”

How should Christians think about this development?

As we have articulated elsewhere, every committed pro-life Christian wants the immediate end and eradication of abortion. In fact, we want to strive for a culture where abortion is illegal and unthinkable. As laws are introduced and litigated, Christians can and should be on the frontlines of caring for vulnerable women and their preborn babies. We have the opportunity to demonstrate the love of Christ and share the good news of the gospel by tangibly serving women in crisis. 

While we work toward that objective, we should appreciate every step that can be taken –– whether accomplished through legislative channels, court decisions, or cultural developments –– to save one additional preborn life. Until that day arrives, the ERLC will always stand for life in the public square, before the courts, and before Congress.

South Carolina passes the “heartbeat bill”
By / Feb 19

On Thursday, South Carolina Governor Henry McMaster signed into law a bill that prohibits abortion once a fetal heartbeat has been detected. The passing of Senate Bill 1, also known as the “heartbeat bill,” by the South Carolina legislature makes the state the twelfth to pass a similar bill in recent years. The House passed the bill Thursday morning by a vote of 79-35, with two Democrats voting for it and two Republicans voting against. The Senate had previously approved the bill on Jan. 28.

The law requires doctors to perform an ultrasound to check for a fetal heartbeat before performing an abortion. If a heartbeat is detected, the doctor would be prohibited from performing an abortion except in the case of great risk to the mother’s life or physical health, if there is a detectable fetal anomaly that is not compatible with life, or in cases where the woman reports the pregnancy to be a result of rape or incest.

The bill would not punish a pregnant woman for obtaining an illegal abortion, but a provider who performs an illegal abortion could be charged with a felony and, upon conviction, be fined $10,000 and sentenced to prison for up to two years.

Critics say the law would not give women time to obtain an abortion after learning they are pregnant. Because of the ability of transvaginal ultrasound to sometimes detect a heartbeat before six weeks’ gestation, some argue the law would create a near total ban on abortions. Of the 5,101 abortions reported in South Carolina in 2019, 2,323 (or 45.5 percent) were performed at six or fewer weeks’ gestation.

In response, Planned Parenthood South Atlantic and the Greenville Women’s Clinic immediately filed a federal lawsuit seeking to block the bill from going into effect. The lawsuit requests the court to issue a temporary restraining order and an injunction that would stop the law from being enforced. The groups argue that the law, which went into effect when the governor signed it, would prevent at least 75 abortions scheduled to be performed within 72 hours of the law going into effect. The case is scheduled to receive a hearing in Columbia’s federal courthouse on Friday at 1 p.m. 

Related to this, the Supreme Court could decide to hear a case involving Mississippi’s fifteen-week abortion ban. If the case is heard, pro-life advocates hope the Court will overturn the landmark decision legalizing abortion in Roe v. Wade. Were Roe to be overturned, state laws would thenl determine access to or restrictions upon abortion. 

Christians should be heartened by this positive news out of South Carolina and should pray the law is able to take effect. We should also continue to pray and advocate for the reversal of Roe, which would immediately save the lives of an estimated 100,000 children a year. And regardless of these outcomes, Christians must continue to advocate for pro-life legislation while also caring for the women and families vulnerable to abortion in our communities.