Thread by @DSiPaint

Since there have been a few requests on this hot topic: I’m summarizing Texas Senate Bill 8, known as the “Texas Heartbeat Act”.

I have included a link to the enacted legislation, if you would like to read it in its entirety.

1/

capitol.texas.gov/tlodocs/87R/bi…

§1 Title: “Texas Heartbeat Act”

§2 Finding: The state never repealed the abortion statutes pre-dating Roe v. Wade, 410 US 113 (1973)

§3 Amendments to Ch. 171 of Health and Safe Code, adding subch. H, regarding detection of fetal heartbeat

2/

§3 (cont) H&S Code, Ch. 171

- §171.201 Defs
(1) “Fetal heartbeat” - cardiac activity, steady/repetitive rhythmic contraction of fetal heart w/i gest sac
(2) “Gestational age” - time from 1st day of woman’s last period

3/

§3 cont

(3) “Gestational sac” - struct comprising extraembryonic membrance enveloping unborn child (typ visible 4th wk via U/S)
(4) “Physician” - MD or DO lic to perform med in state

4/

§3 cont

(5) “Pregnancy” - human female repro condition
- (A) from fertilization
- (B) carrying developing human offspring
- (C) calc’d from 1st dy last period
(6) “Standard medical practice” - deg of skill/care/diligence that OB of ord judg/learning/skill would employ

5/

§3 cont

(7) “Unborn child” human fetis/embryo from fert to birth

- §171.203 Determination of fetal heartbeat
(a) use standard med practice
(b) must determine if present (except §171.205)
(c) determine w/ (1) good faith, (2) appropriate for gest age

6/

§3 cont

(d) log to med record (1) est gest age, (2) method used for age, (3) test used for heartbeat, inc. date, time, test results

7/

§3 cont

- §171.204 Prohibited Abortion of Unborn Child w/ Detectable Fetal Heartbeat
(a) Phys may not knowingly perf/induce abortion if fetal heartbeat (ex §171.205)
(b) Not in violation if no heartbeat
(c) No affect to (1) particular abortion method, (2) other abortion laws

8/

§3 cont

§171.205 Exception for Med Emergency
(a) 171.203, 171.204 don’t apply if emergency presents compliance
(b) Physician perf abortion shall not to med record (1) belief of med emerg, (2) the med condition of woman
(c) Physician must keep records in own practice records

9/

§3 cont

- §171.206 Construct of Subch
(a) Does not create/recognize a right to abortion before fetal heartbeat detected
(b) MAY NOT construe to (1) init action against woman, (2) repeal other statutes, (3) restrict political subdiv from making laws ≥stringent as state laws

10/

§3 cont

- §171.207 Limits on Public Enforcement
(a) Ex §171.005 or other laws, all req’s enforced through civil action in §171.208 (none by state or its subdivs)
(b) MAY NOT construe to (1) legalize prohibited conduct (2) limit avail remedy (3) limit enforcing other laws

11/

§3 cont

- §171.208 Civil Liab for Viol/Aid/Abet
(a) Any person (except gov official) may bring civil action against person who (1) performs/induces abortion violation, (2) aids/abets/pays/reimb regardless of knowledge, or (3) intends conduct in 1 or 2

12/

- §171.208 cont
(b) Prevailing claimant awarded (1) injunctive relief to prevent further violations, (2) $10k statutory damages per violation, (3) attorney fees
(c) 1 award per violation
(d) 4yr limit

13/

- §171.208 cont
(e) Invalid defenses: (1) ignorance/mistake, (2) believes unconstitutional, (3) overruled court decision, (4) non-binding court action, (5) non-mutual issue/claim preclusion, (6) maternal consent, (7) claim of 3rd party constitutional violation (exc §171.209)

14/

- §171.208 cont
(f) Valid defense: (1,2) reasonable belief of own/physician compliance
(f-1) Burden of affirm defense on defendent
(g) MAY NOT construe to impose liability violating 1st Amendment
(h) No intervention by district/county attorney (exc. amicus curiae brief)

15/

- §171.208 cont
(i) No awards to defendant
(j) No civil action allowed by person who impregnated through rape, sexual assault, incest, or acts banned under Penal Code §22.011/§ 22.021/§25.02

16/

§3 cont

- §171.209 Civil Liability: Undue Burden Defense
(a) No standing by defendent to assert rights of woman unless (1) US Supreme Court finds otherwise or (2) has standing under 3rd-party standing test by US Supreme Court

17/

- §171.209 cont
(b) Defendant may assert affirm defense if (1) has 3rd-party standing of women seeking abortion, (2) proves relief sought created undue burden on woman
(c) No undue burden found unless (1,2) relief would prevent or cause obstacles for women from abortions

18/

- §171.209 cont
(d) No undue burden if (1) relief would prevent assistance women seeking abortions or (2) relief against other defendants would cause undue burden
(e) No affirm defense if Roe v. Wade or PP v. Casey overruled.
(f) No limitation on defendant’s constit rights

19/

§3

-§171.210 Civil Liability: Venue
(a) Action brought in county (1) where event/omission occurred, (2,3) defendant’s residence/office, (4) claimant’s residence
(b) Written consent for venue change
-§171.211 Sovereign, Gov, Official Immunity Preserved (statement of)

20/

§3 cont

-§171.212 Severability (detailed explanation of what stands if part invalidated)

§4 New section to Ch.30, Civil Practice & Remedies Code
-§30.022 Award of Atty Fees
(a) Anyone suing state for injunction against abortion limits must pay atty fees of prevailing party

21/

-§30.022 cont
(b) Prevailing party is one who dismisses claim or enters judgment
(c) Prev party may sue for recov atty fees, limit 3yr
(d) Not a defense: (1) failure to seek recov, (2) no court recognition, (3) underlying action invalidated

22/

§5 Section added to Ch. 311(C) of Gov’ment Code
-§311.036 Construction of Abortion Statutes
(a,b) May not construe statutes regulating/limiting abortion to repeal others or limiting subdivisions from statutes ≥ stringent as state
(c) Stmt on severability of individ statutes

23/

§6 Amend §171.005, Health and Safety Code (text for civil enforcement added)

§7 Section added to §171(A), Health and Safety Code
-§171.008 Req’d Docu
(a,b) Physician must document med necess for abortion & shall (1) place in woman’s record (2) keep copy in practice records

24/

-§171.008 cont
(c) Physician shall
- (1) for woman’s health: document (A) med condition & (B) provide med rationale for abortion
- (2) not for woman’s health: Document that health not the reason
(d) Physician shall keep in practice records

25/

§8 Health and Safety Code, §171.012(a)
Several repeated textual changes relating to informed consent:
- “perform abortion” —> “perform _or_induce_ abortion”
- “performed abortion” —> “performed _or_induced_ abortion”
- “department” —> “commission”
- “fetus” —> “unborn child”

26/

§9 Health and Safety Code, §245.011(c) amended, adding to the report:
(10) Whether abortion was performed/induced for med emergency
(11) Info req’d under §171.008(a,c)

§10 Stmt on Severability
§11 Stmt on no ex post facto
§12 Effective September 1, 2021

That concludes SB8.

27/

Since the legislation amended existing code sections, here are links for full their context:

Civil Practice and Remedies Code ch.30 “Miscellaneous Provisions”
statutes.capitol.texas.gov/Docs/CP/htm/CP…

Government Code ch.311 “General Provisions”
statutes.capitol.texas.gov/Docs/GV/htm/GV…

28/

Health and Safety Code ch.171 “General Provisions”
statutes.capitol.texas.gov/Docs/HS/htm/HS…

Health and Safety Code ch.245 “Abortion Facilities”
statutes.capitol.texas.gov/Docs/HS/htm/HS…

Note that none of these have been updated yet w/ SB8’s amendments.

29/

Final note: I am not an attorney, so don’t take this summary as legal advice. If you find any errors or omissions, please let me know, & I will do my best to correct them by appending to this thread.

30/30

Some key provisions of SB8 for Health & Safety Code:

§171.203 Must check fetal heartbeat
§171.204 No abortion when fetal heartbeat
§171.205 Med emerg exemption, must be doc’d
§171.206 No action against the woman
§171.208 Only non-gov people enforce, no standing for rapist