On May 19, 2021, Governor Greg Abbott signed Texas Senate Bill 8 (also known as the Fetal Heartbeat Bill) into law with the statement that this will save lives in the state of Texas. This law is recognized as the most restrictive anti-abortion regulation in the United States today.
As the state of origin of Roe v. Wade, Texas has a history of restricting access to abortion including requirements of transvaginal ultrasounds, pre-procedure waiting periods, burial of fetal remains, provision of state-mandated medically inaccurate information to patients seeking an abortion, and burdensome regulations for providers and facilities providing abortion care.1
The goal is to eliminate termination of pregnancy while ignoring the overwhelming evidence that improved access to contraception would be more effective in decreasing elective termination rates. Their legislative approach has been direct with oversight provided by state agencies.
But 2021 is a different time with different issues. We are living in a global pandemic fraught with marginal vaccination rates, lack of mask mandates in the name of personal liberty, and prioritization of politics over science. We are living in a nation deeply divided in political beliefs concerning voting rights, economic policies, immigration policies, climate crisis, military policies, civil rights, human rights, and reproductive rights.
With the current 2 party system, moderates of both parties are often omitted and voters are ultimately influenced by just 1 or 2 issues. Access to abortion is often one of those issues. Most Texans and most Americans support access to termination of pregnancy at some level.2 The deep division over this right exists within our own specialty. But even the most conservative agree, there are circumstances that necessitate this procedure.
Restriction of abortion services has been a priority for the Texas Legislature for some time. But the law passed this year — described as clever by some and devious by others — was quite different.
The law comes in addition to existing restrictions and now prohibits the termination of a pregnancy once fetal cardiac activity is detected by “standard medical practice” which “includes employing the appropriate means of detecting the heartbeat based on the estimated gestational age of the unborn child and the condition of the woman and her pregnancy.”3
This reflects a marked departure in the previous claims of anti-abortion legislators that their proposed restrictions are in the best interest of the pregnant woman. The only exception to this would be a “medical emergency” for the mother, which is defined as “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”4
To add further alarm, SB8 also prohibits anyone from “aiding and abetting” a prohibited abortion, so loosely defined that it could be construed to ban related counseling, information, and referrals for care.5
The law ignores medical conditions that are common indications for termination: selective reduction in higher order multiple gestations, fetal reduction for severe twin-twin transfusion syndrome, pre-viable preterm premature rupture of membranes, and inevitable abortions.
It also ignores maternal medical conditions in which pregnancy may increase maternal morbidity and mortality while not placing the patient in imminent danger at the time of pregnancy diagnosis such as cardiomyopathy, lupus, nephrotic syndrome, and TTP.
In short, these are not considered exceptions unless life-threatening maternal illness is present.
Noticeably absent from the statute are the long-accepted exceptions of rape, incest, trafficking, and fetal anomalies/chromosomal abnormalities.
Why would these be omitted?
It has been suggested that the right-to-life movement feels that the termination of pregnancy as a result of abuse is ideologically indefensible and weakens their political argument. Their focus is on the fetus — regardless of the circumstances of conception.
This law will worsen the stark disparities in women’s health outcomes. Those who may not have the resources, ability to take off time from work, or secure childcare to travel out of state for this service, will be disproportionately harmed.
Many physicians, aware of data from countries where abortion is illegal or highly restricted, fear this ban will lead to an increase in septic abortion rates and other complications of unsafe procedures that are rarely seen today.
Furthermore, this law “shall be enforced exclusively through private civil action.” In Texas, civil liability requires personal damage or loss. That is, until now. Damage or harm is not a requirement in this statute, and the cause of action can be initiated by any person.
Instead of giving state official enforcement power, SB8 deputizes any private citizen, regardless of whether they have suffered personal damage or loss, to initiate civil action against a person who they claim has violated the law. Statutory damages are defined as a minimum of $10,000 for each violation (there is no maximum), on top of costs and attorney’s fees, and a statute of limitation of 4 years.6
This may expose physicians to potentially endless civil lawsuits if the law is allowed to stay in effect. This approach is out of step for a state that, in 2003, led the nation in tort reform—something which many obstetrician-gynecologists, myself included, have celebrated.
Another major concern is the lack of support if a provider is named in a cause of action. Most carriers have made it clear that defending SB8 claims would not be covered by medical malpractice insurance. Most hospitals and health care institutions have indicated that they will not offer coverage to providers sued under SB8. And even if the defendant is cleared, one cannot countersue for defamation. Patients seeking terminations will not be sued. This law is aimed directly at physicians.
We cannot yet measure the extent of how this chaos will impact our ability to practice medicine.
This law has been described as “creative” in that it is enforced using civil liability therefore the state of Texas and its officials cannot be directly sued. The Supreme Court of the United States declined to stop the enactment of the law. They did not address the constitutionality of the law. According to Chief Justice John Roberts, “It can promptly do so when that question is properly presented.”7
To get into the court system, the challenge to the law can present only after a cause of action is filed. The first cause of action was filed against Alan R. Braid, MD. The plaintiff is a former lawyer and convicted felon from Arkansas who is asking for $100,000 compensation. This type of law creates a dangerous precedent.
What will stop similar laws from being enacted allowing civil liability in other controversial issues such as gun ownership or criticism of public officials?
In a special session, the Texas legislature recently passed SB4 - a law that regulates the prescription and dispensation of medications commonly used in pregnancy termination along with increased reporting requirements for complications. Mifeprex, misoprostol, and methotrexate are specifically named in this law. These are the very drugs often used in early pregnancy loss, ectopic pregnancies, and postpartum hemorrhage.
As the bill is currently written, it is unclear if providers will be criminally liable for the use of these medications in those circumstances. SB4 also criminalizes the failure to report “complications of abortion” without specification of a time frame and includes a list of events that physicians may not typically recognize as a complication of abortion. This bill was signed into law on September 17, 2021.
Legislators in other states have already signaled plans to replicate SB8. Our colleagues in Texas and across the country should be alarmed and dismayed. It is critical that physicians across specialties speak out against this affront to our profession.
Texas is again ground zero for the abortion fight.
Regardless of your personal view, this is no longer about elective termination of pregnancy. It is about the practice of medicine and our ability to provide patient care.