Among what makes abortion laws in the country, particular in Texas, unique compared to other issues is how dynamic the issue is during every legislative period. This despite the fact that public opinion on abortion has been one of the rare controversial, to remain consistent in regards to its public support.
Abortion is illegal in the state of Texas. Strengthened by Senate Bill 8 in the most recent Legislative session that made the termination of a pregnancy illegal as soon as a fetal heartbeat can be detected. There is one condition where terminating the pregnancy in Texas is not illegal and that is “unless there is a medical emergency as defined under Health and Safety Code Section 171.002.”
More specifically, the third note on Health and Safety Code Section 171.002 defines what is meant by medical emergency: “Medical emergency” means 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. This is the only exception. Abortion in Texas is currently illegal even in cases of rape or incest.
When is it illegal?
As the above section noted, it illegal (as of 2021) to have an abortion after a fetal heartbeat is detected. Furthermore prior to performing an abortion, the doctor must make an effort to detect whether the infant has a heartbeat. A heartbeat can be detected via an ultrasound usually as early as 5 and a half to 6 weeks in the pregnancy. However up until 8 weeks there’s still some ambiguity on the readings.
The timing is controversial here because many women (perhaps most women) may not discover they are pregnant until after 6 weeks into the pregnancy. This would effectively leave the option of abortion off the table.
What is the punishment?
This is where things get tricky. Heartbeat bills are becoming common place around the conservative South, but Texas has a unique twist on enforcement. As the Texas Tribune reported, that the (new) current law changes things up in how penalties are enforced as “the bill turns the reins over to private citizens — who are newly empowered to sue abortion providers or anyone who helps someone get an abortion after a fetal heartbeat has been detected. The person would not have to be connected to someone who had an abortion or to a provider to sue.”
Illegal for Doctor’s to Perform?
We’ll do a further deep dive into this in the analysis of SB 8, but sections 171.203, 171.204 and 171.205 deal with this in regards to the responsibility of the physician. However section 171.204 makes it particularly clear that doctors are prohibited “from knowingly performing or inducing an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required by Section 171.203 or failed to perform a test to detect a fetal heartbeat.”
History of Abortion In Texas
As is the norm around the country, abortion laws first started to weave their way into existence in the 1900s to correspond with advancing improvements in medical interventions. Legislatively and judicially, Texas is fairly unique. By 1854, Texas passed a law that made it illegal for a physician (or someone else, usually someone else at that time) to perform an abortion. That was punishable by up to five years in prison (minimum sentence being two years).
Despite the Roe v. Wade decision in 1973, Texas became even more aggressive about trying to prevent abortions in the state (with whatever wiggle room was made available to them by holes in the federal law). For example, in 1992 the state made it illegal for anyone without a physicians license in the state (that is provided by the state) to perform an abortion.
In 1997, Texas enacted an appropriations bill to make it illegal for family planning medication to be given to minors without parental permission (p.120). This is a particularly effective way to regulate away abortion in states where traditional homes disavow the practice (as they will not consent to the procedure being done).
Opinions on Abortion in Texas
Pew.org’s state by state research on religious practices and beliefs returned some surprising data on opinions on the practice within the state of Texas. According to their research, they showed that 45% of Texans believe that abortion should be Legal in all or most cases. 50% thought that it should be illegal in all or most cases and 4% said that they did not know.
That number has been fairly stable over the last decade as a 2007 poll showed the number to be about the same (44% in favor of legal in most cases) but the breakdown by age, education and party seem to be the most revealing.
Views on Abortion By Age
Age is interesting contributing factor in one’s position on abortion in Texas. The younger group (18-29) is the most in favor of Abortion in all or most cases but that gradually falls off over time. After 50, things seem pretty fixed but it’s an interesting trend overall. See below for the Pew results.
Opinions on Abortion in Texas By Party
This really was the big one as 89% of those that identified as “Liberal Democrat/lean Dem.” said that abortion should be legal in all or most cases. Those that identified as Conservative Republican/lean Rep. thought it should be legal in just 22% of cases. Finally moderate Republicans were split 59% (illegal) to 39% (legal) about whether the practice and moderate Democrats came in at inverse clip of 72% to 26%.
Arguments For and Against Abortion
Though the arguments for (and against) abortion are not particularly unique to Texas, we feel obligated to provide the two primary arguments from the philosophical and political science literature (of which the discussion on abortion is quite rich and fascinating). Thankfully as we strive for objectivity in our work, the two perhaps most discussed papers on the bill are on either side of the discussion.
Argument For Pro-Choice
The most cited paper by far in the defense about the ethical permissibility of abortion, belongs to Philosopher Judith Jarvis Thomson and her paper A Defense of Abortion, first published in 1973. The paper asks one to imagine that one has woken up next to a famous violinist and they are biologically attached. If the person can just hang in there for 9 months the world renowned violinist can be removed from the biological tethering. Any attempt to remove the violinist before 9 months will result in the death of the violinist. Judith Jarvis Thomson asks the reader: “Should it be law that the person hang in there for nine months?”
This served as the basis for what became known as the “Bodily Rights” argument. Rephrased in more efficient language, one might ask “let’s say I need a kidney and have one match (my neighbor): should it be the law for my neighbor to give me his kidney?”
Perhaps the most compelling aspect of the argument is that the author grants that the unborn fetus is a human being. Thereby owed the rights that are endowed to any citizen and yet that does not mean that abortion should be illegal.
Arguments for Pro-Life
Conversely, perhaps the most famous argument on the other side is Why Abortion is Immoral by Philosopher Don Marquis. The paper brought to notion the argument of “fetal potential.”
Marquis asks readers to consider why it’s more tragic when a young child dies in an accident compared to an elderly person passing away? He argues that it’s due to the fact that the young child still has their whole lives ahead of them and that’s the real tragedy. Furthermore, at a certain point in a fetus’ developmental life cycle, there becomes a point where the fetus is likely going to become a healthy child.
Recent Abortion Bills In Texas
In 2013 things took a tumultuous turn when House Bill 2 in session 83(2) created a major change in the amount of doctor’s who perform abortions in Texas. The bill dealt with issues regarding the fetus’ ability to recognize pain at six weeks. At still contested issue but, similarly, the bill was the first major bill that put liability on the doctor and hospital to conduct pre-abortion related tests of the fetus.
Like other states (such as Georgia), Texas successfully passed a heartbeat bill in 2021. This bill, Senate Bill 8, makes it illegal for physicians to perform abortions on fetuses if they have an existing heartbeat. Furthermore the bill requires that physicians check for a heartbeat before performing the procedure.