An Exploration of Texas' Enigmatic Abortion Law and its Legal Implications

Graphic by Arola Oluwehinmi

Since the landmark 1972 Roe v. Wade decision, women’s reproductive rights have been a subject of constant scrutiny and jeopardization. One such case has notably occurred in 2021, with a Texas abortion law proposing a new set of hurdles obstructing access to safe, affordable abortion. Known colloquially as a “heartbeat bill,” the new law restricts access to abortion after a fetal heartbeat is detected, which can happen as early as six weeks into a pregnancy. When discussing abortion, the public debate is usually centered around moral qualms such as the belief in life at conception or the right to bodily autonomy. However, in the case of this law, legal arguments also play into its nationwide controversy. The juxtaposition of these two perspectives further complicates the public’s and nationwide legal entities’ abilities to come to a consensus about the law’s right to exist and be enacted. However, while the legal loopholes and complexities of Texas’ abortion law are certainly worthy of judicial scrutiny, it is vital for the Supreme Court and abortion providers to focus on the potential long-term harm done to both women and children when reviewing this law and moving forward with action. When such causes are underlined, it will be easier for the reproductive rights movement to garner greater support and dismantle the law progressively. 

In order to take an informed stance on the law, however, one must understand its structure and history. Section 171.204 of the law states that “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,” unless the pregnancy poses a plausible threat to the woman’s health as enumerated in Section 171.205. However, the idea of a threat to the woman’s health is to be determined solely by the physician’s belief thereof, thus adding an additional complication to the law. Contrary to popular belief, a recipient of an abortion cannot be prosecuted; however, according to Section 171.208 of the law, any person other than a government employee can bring civil suit against anyone who performs, aids, or abets in the completion of an abortion. The incentive the law provides for initiating legal action against abortion providers and aids is a $10,000 “bounty” as well as reimbursement for costs and attorney’s fees. The law takes on further legal complications when it is related to the 1908 Ex parte Young court case, wherein the Supreme Court held that state officials could be sued in federal court to prevent them from enforcing unconstitutional laws; however, given that it is private citizens and not state officials who enforce this law, it is difficult to relate it to any legal precedent. While liberal Supreme Court justices, U.S. Solicitor General Elizabeth Prelogar, and lawyers for Texas abortion providers have voiced public dissent for the law, conservative Supreme Court justices and Texas Solicitor General Judd Stone have argued against excessive use of federal power to block enforcement of the law. 

Despite there being much public disagreement over the law’s structure and constitutionality, its atypical provisions have been a subject of common ground for many on different ends of the political spectrum. Conservative Justice Amy Coney Barrett noted that the law was written to prohibit lawyers from using a “full constitutional defense,” and the law has successfully avoided review in federal court due to its über-specific composition. Furthermore, Justice Brett Kavanaugh expressed confusion at Texas Solicitor General Judd Stone’s confirmation that Texas abortion clinics would be liable for abortions performed in the past, commenting that this would force providers to be liable for “millions and millions of dollars” despite the legality of their actions at the time they were performed. However, notable conservative opposition to the law stems from the notion that the authority used to respond to the law could be abused in other cases and could thus defy the entire structure of federalism that has so long thrived in the United States. This notion is supported by Judd Stone, who has repeatedly asserted that the federal government does not have the right to sue the state of Texas in federal court. Contrarily, many liberals, such as Justice Elena Kagan, fear that Texas’ attempt to nullify the authority of the Supreme Court will invite other states to do the same with respect to whatever rights they see fit, including “guns, same-sex marriage, [and] religious rights.” However, as Supreme Court judges and other legal entities fixate upon the supposed unconstitutionality of the law or the unconstitutionality of opposing it with federal action, they lose track of far more compelling arguments to be made against the legally anomalous and potentially dangerous law.

If opponents to the law were to shift their focus to the potentially catastrophic medical and financial repercussions of the bill, they could create a legal argument that is significant enough to prove its unconstitutionality. The idea of such consequences is by no means a far-fetched one, particularly given the law’s lack of exceptions for instances of rape and incest and its inherent value of the fetus’ growth to term over the health and future of the mother. This law provides no real solution to the need for abortions because it focuses on restriction rather than prevention. Restricting abortions will not significantly reduce them; instead, it will reduce the rate of safe, successful abortions that allow the mother to continue with little to no long-term health consequences. When women are robbed of safe abortion care, they are not encouraged to continue their pregnancy but instead to seek dangerous terminations as a last-resort option. According to an estimate taken between 2010-2014 by the World Health Organization, 45 percent of induced abortions are unsafe, with approximately one-third of them being performed in unsanitary conditions by untrained, unlicensed practitioners. Consequently, 4.7-13.2 percent of maternal deaths result from unsafe abortions due to complications such as hemorrhaging, infection, and uterine perforation. Although this figure may seem minute to some, it is appalling that women must die of complications from unsafe termination procedures at all. Promotion of birth control, affordable, easy access to safe abortion, and destigmatization of abortion could both prevent these untimely deaths and allow a woman to become a mother when she has the resources and emotional availability to do so. 

If lawmakers were to examine these risks from a constitutional perspective, they would find these risks to be in violation of the basic constitutional duty to promote the general welfare. If the Supreme Court and state courts withheld their judicial power of review in these cases, the U.S. government would be committing an egregious act of ignorance and would consequently abuse the financial, emotional, and physical health of its citizens. Furthermore, it is difficult to secure the blessings of liberty to one’s posterity if they are born to a mother who did not yet have the financial or emotional resources to parent them. In a 2002 study concentrating on the number of adoptions before and after the Roe v. Wade decision, researchers Marianne Bitler and Madeline Zovodny found that the rate of adoptions of children primarily born to white women decreased by approximately 35 percent in states that repealed restrictive abortion laws. In states that allowed exceptions for rape and incest in their abortion policy, the rate of adoption for these children saw a decrease of 15-18 percent; while the study acknowledges the lack of statistical significance for these results, it also deemed the estimated effect of abortion legalization as “sizeable” and suggested that the notion of abortion legalization leading to a decrease in the amount of “unwanted” children is correct. When children are born into families that have the ability to parent them in a loving, financially secure environment, they can experience better health and living conditions than a child who was forced into a home that could not yet support them. 

With both the consequences of restricted abortion access and the benefits of legalized abortion in mind, it would be illogical and catastrophic to proceed with a law that would endanger both the mother and child. If the medical, moral, and legal arguments are not sufficient to convince one of this law’s dangers, then perhaps economic figures will be. The aforementioned WHO study cited an estimate from 2006 that noted the U.S. $553 million cost of post-abortion procedures for households in developing countries. This cost nearly doubled in regards to long-term disabilities attributed to unsafe abortion procedures. Given that healthcare spending in the United States grew by 4.6 percent in 2019, catapulting the price per individual to $11,582, it would be potentially devastating to add more preventable expenses. When money is invested in safe abortion procedures, it will not be spent on the disastrous consequences of botched abortions, and women will ultimately live safer, healthier lives. This saved money could possibly go towards sexual education, birth control, and easier, healthier, and more affordable abortion procedures that are accessible to women of all classes and races. 

With such compelling, multifaceted arguments, it is difficult to argue for both the constitutionality and logic of this law. If lawmakers base their arguments on the consequences to democracy and public welfare that this law could enact, they could not only overturn a dangerous, restrictive law but improve the quality of life for both women and children across the United States. In a country that values the input of citizens to thrive, it is vital to ensure that those citizens are granted the best quality of life possible, and this cannot be done if such drastic manners of prohibition are in place.