Texas Senate Bill 8

What it is and recent developments with the Supreme Court




Parker Bradford, Editor of Community

Texas Senate Bill 8, or as it is more commonly known, SB-8, is a bill that commenced in Texas on September 1st regarding abortions performed in the state. The bill is highly restrictive, essentially revoking the ability of any woman to get an abortion after six weeks of pregnancy regardless of situation, unless continuing through pregnancy is determined to be a health risk for the expectant mother. The bill was also made in such a way that it is able to evade most federal legislation and judgment, save the Supreme Court.

SB-8 has many provisions and can be a very daunting and boring read, so a few of the main sections are summarized as follows: 171.201, 171.202, 171.203, 171.204, 171.205, 171.206, 171.208, 171.209, 171.212. These sections are only a small portion of the total, but for those who do not want to read the full 24-page document, they will suffice.

Section 171.201 defines the term “Fetal heartbeat,” which, according to the section, is the “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” Section 171.202 elaborates on this, saying that a “fetal heartbeat has become a key medical predictor that an unborn child will reach live birth.” This is the basis for the rest of their provisions targeting abortion. Section 171.201 defines a fetal heartbeat as cardiac activity, and this fetal heartbeat is supposedly able to be found around the 6th week of pregnancy. This, however, may come as news to doctors and medical professionals, some of whom would disagree on this matter. Dr. Nisha Verma says, “The flickering that we’re seeing on the ultrasound that early in the development of the pregnancy is actually electrical activity, and the sound that you ‘hear’ is actually manufactured by the ultrasound machine.” Also, an unborn baby is not scientifically considered a fetus until around 8-9 weeks from conception, making this not-fetus’ not-heartbeat a little less convincing.

Section 171.203 states that a physician “may not knowingly perform or induce an abortion on a pregnant woman” without first checking for this “fetal heartbeat.” This, on its own, is not very bad. However, section 171.204 states that “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat” as per section 171.203. This means that any woman who wishes for an abortion may not get one if they have passed six weeks, even though the embryo may not have developed into a full fetus yet and there is no real heart to beat, let alone a heartbeat. (Also, most women discover their pregnancy between weeks 4 and 7, so they may have a maximum of two weeks to decide if they wish to give birth, and many won’t have any time at all).

Section 171.205 allows physicians to perform abortions in the case of medical emergency regardless of sections 171.203-204, and section 171.206 is the simplest of the four, yet just as controversial: “This subchapter does not create or recognize a right to abortion before a fetal heartbeat is detected.” So, to recap, a woman does not have a right to an abortion at all, and it is now against Texas law to perform an abortion on a woman after six weeks of pregnancy because of a not-yet-fetus’ pre-heart electrical signals unless there is a medical emergency.

Sections 171.208 establishes that any citizen not affiliated with or employed by the Texas state government or their agencies are entitled to sue any person who has performed an abortion on a woman or aided said woman is receiving an abortion, regardless of their knowledge of the abortion. Section 171.209 states that “A defendant against whom an action is brought under Section 171.208 does not have standing to assert the rights of women seeking an abortion as a defense to liability under that section” unless the Supreme Court specifically decides that women have the right to an abortion. 

Finally, section 171.212 says, “If any court declares or finds a provision of this chapter facially unconstitutional, when discrete applications of that provision can be enforced against a person, group of persons, or circumstances without violating the United States Constitution and Texas Constitution, those applications shall be severed from all remaining applications of the provision, and the provision shall be interpreted as if the legislature had enacted a provision limited to the persons, group of persons, or circumstances for which the provision’s application will not violate the United States Constitution and Texas Constitution.”

Altogether, this bill denies women the right to an abortion or to claim the right to an abortion as a legal defense, makes it illegal to give or aid someone in receiving an abortion, and deputizes the people of Texas to enforce their laws for them. And if the Supreme Court finds any piece of the legislation to be unlawful or unconstitutional in most or all cases, the specific piece can be removed or redirected to only focus on those people that the bill may target.

A challenge to the bill has been made and the Supreme Court is deciding whether to allow challenges at all. However, even if they allow a challenge, they would then be left to decide whether or not to amend or strike down the bill, which is an entirely different matter. Without a Supreme Court decision removing this bill, abortion clinics may see a decline in Texas due to bankruptcy resulting from lawsuits, and a new standard for how close a state can become to countering previous Supreme Court cases like Roe v Wade will be established.