UPDATE: ACLJ Submits Written Testimony on Texas Heartbeat Act

The ACLJ has just submitted written testimony on a Texas bill creating civil remedies for abortions done after the baby in the womb develops a heartbeat. The bill, Texas Senate Bill 8, represents an innovative approach to abortion regulation.

SB 8 authorizes any Texan to sue, for damages and attorney fees, anyone who commits an illegal abortion, or anyone who “aids or abets” an illegal abortion, “including paying for or reimbursing the costs of an abortion through insurance or otherwise.” The bill specifies that an abortion is illegal for purposes of SB 8 either (a) if the abortionist failed to test for a fetal heartbeat or (b) if a heartbeat was found to be present. If a heartbeat is found, the bill requires the abortionist to let the pregnant woman know the statistical probability of a successful birth (which is quite high once a heartbeat is detected).

The ACLJ testimony addressed the operation and constitutionality of the Texas Heartbeat Act. As we pointed out:

The [U.S.] Supreme Court has affirmed that States can require that a woman contemplating abortion receive informed consent. . . . That a child already has a heartbeat plainly will be a material consideration to many women considering abortion. This developmental detail brings home the humanity of the child and boldly illustrates the fact that the baby is already alive. The presence of a heartbeat also has a strong correlation with the ultimate prospects of a successful, live birth. Thus, informing the pregnant woman that her child has a heartbeat, in those cases where a heartbeat has been detected, is a constitutionally permissible facet of informed consent.

Regarding the bill’s innovative use of exclusively civil remedies, we noted (emphasis added):

Under controlling federal court precedent, . . . abortion providers are not permitted to challenge such civil remedy laws in a preenforcement federal court challenge. Obviously, where the state lacks enforcement power, relief against the state would be meaningless. And abortionists cannot sue all potential private party plaintiffs, as such defendants are not yet identifiable and it is pure speculation that any particular person might sue at some point in the future. What this means is that the abortion providers must wait until they are sued, at which time they can challenge the constitutionality of the heartbeat abortion prohibition as an affirmative defense to liability.

We also take the occasion to point out the injustice of courts imposing abortion upon the nation:

Recall that while many people view abortion as a tragedy, an injustice, or both, abortion looks attractive to: sexual predators who do not want evidence left of their misdeeds; irresponsible men who do not want to be liable for child support or the duties of fatherhood; heartless employers who view an employee’s pregnancy and delivery of a child as a hindrance to a bottom line profit; etc. In such cases, a woman’s supposed “liberty” is really an escape hatch conscripted to serve the interests of uncaring third parties.

While the Supreme Court currently considers “viability” as an important marker in abortion regulation, we hammer the illogic of that line:

[T]he current understanding of the significance of viability is perverse: under the Roe v. Wade understanding, the state can only step in to prevent the expulsion from the womb of those who can survive outside the womb. That’s like saying the state can only save a person from being thrown overboard from a ship if they can swim. It is precisely backwards. Those who cannot swim – are not “viable” in the sea – are the ones who most need protection from being cast out of the safety of the ship, and those who cannot yet survive outside the womb are exactly those who most need protection from being cast out of that safe environment too soon.

The Texas Heartbeat Act also includes an important addition to abortion reporting law: The abortionist must state whether the abortion was supposedly done for “health”; and if so, explain in what way. As we elaborate in the written testimony:

Sometimes abortion is touted as part of “reproductive health.” Sometimes abortion is defended as an exercise of “choice.” New Sec. 171.008(c) simply requires the abortionist to record and report for each abortion whether “health” is a reason for the abortion. If it turns out that health is rarely at issue, that is valuable public information. If, on the contrary, health is frequently cited as a rationale for the abortion, then it is important to know what health concerns are being invoked for these women and why abortion is considered a remedy. Such basic data can contribute importantly to public evaluation of abortion, either by indicating the overuse of asserted, but actually flimsy or phony, “health” justifications, on the one hand, or by identifying genuine maternal health concerns that merit public response, on the other.

Introduced by Texas Senator Bryan Hughes, the Texas Heartbeat Act was the subject of a hearing on March 15th in the Texas Senate State Affairs Committee. The state’s Lieutenant Governor, Dan Patrick, has reportedly stated that heartbeat legislation is one of his top priorities for the current legislative session.

At the ACLJ, we are working with numerous state legislatures to help draft legislation, provide legal advice, and give testimony concerning heartbeat bills and other innovative pro-life legislation.

UPDATE 04.09.2021: We have also just submitted written testimony to the Texas House on this same bill.