The strictest abortion law in the U.S. took effect on Sept. 1 in Texas. Designed to protect fetuses from the moment a heartbeat is detected, the law is seen by abortion-rights supporters as an end-run around Roe v. Wade — the 1973 Supreme Court decision that legalized abortion nationwide — and a possible blueprint for other states to make policy by encouraging neighbors to sue each other.
1. What does the Texas law do?
It prohibits a physician from performing an abortion once a fetal heartbeat is detected, something that generally occurs around six weeks after conception — which is before a lot of women realize they’re pregnant, according to abortion providers. More broadly, the law bars any individual from “aiding and abetting” an abortion after six weeks, which includes helping pay for it or merely trying to help a woman obtain one. The law’s only exception is for abortions that are necessary for treatment of a medical emergency. Abortions of pregnancies caused by rape or incest are among those prohibited after six weeks. So are abortions prompted by fetal health problems that make it unlikely the child will survive after birth.
2. How is it enforced?
The law is unusual in that it tasks private citizens, rather than the state, with enforcement. It says that “any person,” other than a government official, may file a civil lawsuit to enforce the law against anyone who performs or intends to perform a prohibited abortion, or who aids or abets one. The law provides for at least $10,000 in “statutory damages” for each abortion performed, which is payable by the abortion provider and/or anybody who aided or abetted. There is no cap on the amount of damages a court can award to a citizen who sues to enforce the law. Other provisions of the law meant to hamstring abortion providers include rules on where they might have to travel to defend themselves in the second-largest U.S. state and limits on the defenses they can present in court.
3. What can happen to women who have abortions after six weeks?
Nothing. The Texas law doesn’t hold the woman liable — just those who help her.
4. Why is enforcement left to private citizens?
By keeping government officials out of enforcement, advocates of the law hoped to insulate it from review by federal courts. Governments are generally constrained by the U.S. Constitution, but private citizens aren’t. Texas argues that even if the new law is found to be unconstitutional, courts would lack any basis to issue an order blocking it. If the Texas law is upheld, other states might pass similar measures encouraging strategic lawsuits by residents.
5. How many abortions would become illegal in Texas?
Most of them, judging by nationwide statistics. Only about 40% of abortions in the U.S. are performed within the first six weeks of gestation, according to the most recent data collected by the U.S. Centers for Disease Control and Prevention. Abortion providers who fought the law to the U.S. Supreme Court claimed it would bar care for at least 85% of Texas abortion patients and likely force many abortion clinics to close.
6. What does the Supreme Court say?
By a 5-4 vote, the court refused to block the law while legal challenges against it continue in lower courts. The majority said abortion providers had “raised serious questions regarding the constitutionality of the Texas law” but hadn’t shown they could overcome the thicket of procedural obstacles stemming from the law’s unusual delegation of enforcement powers to private parties. The law faces a number of additional challenges, including in Texas state courts.
7. What does this mean for Roe v. Wade?
The Supreme Court has generally prohibited restrictions on abortions until “viability” — when a fetus is capable of surviving outside of the womb. The court has suggested that takes place around 23 or 24 weeks. Already on the docket for the high court’s fall term is a challenge to a Mississippi law that would outlaw most abortions after 15 weeks. Mississippi argues that viability is “not an appropriate standard for assessing the constitutionality” of abortion laws.
Bloomberg’s Greg Stohr contributed to this report.