Featured Article

The Texas Heartbeat Act: 

Where Sound Science Meets Strong Strategy

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Bioethics in Law & Culture                                                                                                                            Summer  2021       vol. 4  issue  3

Arina Grossu, M.S., M.A.

Policy and Communications Advisor to Texas Values

Jonathan Saenz, Esq.

Founder and President of Texas Values

What’s in a heartbeat? Moms and dads anxiously await to hear the sound of their baby’s heart beating when they go for their first ultrasound.  That awe-inspiring sound lets them know that their baby is alive and well.  An absence of a heartbeat oftentimes means that they miscarried.  Where there is a heartbeat, there is life.   

 

On May 19, 2021, Governor Greg Abbott signed into law the Texas Heartbeat Act (S.B. 8)(hereinafter the “Act”), which will take effect on September 1, 2021.  The Act requires abortion providers to check for a baby’s heartbeat and to inform the mother if a heartbeat is detected. Once a heartbeat is detected, the abortion provider must take all necessary steps to protect the life of the preborn child.  A heartbeat can be detected generally around 6 weeks gestation (4 weeks post-fertilization)[i], although it can be detected as early as around 5 weeks gestation.[ii]  Current Texas law permits abortions as late as 20 weeks.[iii]  When the Act goes into effect in September, it will drastically change the practice of abortion in Texas by banning abortions after a heartbeat is detected. 

 

What makes the Act different from other states’ heartbeat laws is that the Act will be enforced exclusively through private civil actions.  This is a novel strategy to heartbeat legislation. Only having civil penalties limits governmental actors, which in turn helps prevent the types of constitutional challenges typically filed in court by pro-abortion groups that have stopped other heartbeat laws from going into effect.  The day after the Act was signed, the Biden Administration called it “the most restrictive measure yet in the nation.”[iv]  The fact that the Biden Administration reacted so negatively to the Act indicates that the measure is onto something powerful and potentially game-changing in how future pro-life bills are constructed.

 

Why a Heartbeat Law?

An embryo’s beating heart has become a key medical predictor that a preborn child will reach live birth.  In human embryos, the heart begins to beat around 5 weeks gestation, which is the equivalent of 22 days post-fertilization.  The circulatory system is the first system in the human body to become functional, with the heart being one of the earliest functioning organs. It may be possible to detect the heartbeat as early as 5 weeks gestation by a transvaginal ultrasound, but it is generally detected closer to 6 to 7 weeks gestation.[v]  At 5 weeks gestation, “even though the embryo is so small, heartbeats at a rate of about 100 bpm [beats per minute] can frequently be detected within the embryonic pole.”[vi]  The normal heart of an embryo at 6 to 7 weeks gestation beats between 100 to 120 beats per minute.[vii]  The presence of an embryonic heartbeat is a sign that the embryo is viable and the outcomes are especially positive when the heart rate is in the normal range.  Embryos who have a normal heartbeat rate have a 90% chance survival rate, and embryos with heart rates bordering the normal heartbeat rate have an approximate 83% survival rate.[viii] 

 

Heartbeat laws protect preborn children from the moment a heartbeat is detected, thus prohibiting abortion from very early on in pregnancy when the vast majority of abortions take place.  According to the Centers for Disease Control and Prevention (CDC), in 2018, over three-fourths of all abortions (78%) were committed by 9 weeks gestation, and nearly all (92%) abortions were committed by 13 weeks gestation.[ix]

 

Texas Values believes in the protection of human life from the moment of fertilization, more specifically, at sperm-egg fusion when a new human being is created with a unique set of DNA.  At the moment a sperm penetrates an egg during fertilization, billions of zinc atoms spark and emit a breathtaking light on the surface of the newly formed embryo, creating a literal “zinc spark” that scientists have been able to film using fluorescent microscopy. [x]  At the moment when sperm and egg unite, all of the physical characteristics that an embryo will have are already determined, including sex, height, eye, and hair color.  Texas Values looks forward to the day when the Supreme Court case, Roe v. Wade, will be overturned and the question of the legality of abortion will go back to the states.  Until that time becomes a reality, and short of a total ban on abortions, Texas Values believes in saving as many preborn children and their mothers from the ravages of abortion as early as possible.  A heartbeat law does that in the first trimester of pregnancy when over 9 in 10 abortions take place. 

 

Texas Abortions: The Heart of the Matter

Over 55,000 abortions were committed in Texas in 2020 according to the Texas Health and Human Services, with an average of 56,400 in 2018 and 2019.[xi] That’s a high number but it’s lower than the approximately 80,000 abortions that were committed annually in Texas on average between 2008 to 2010, before the 2011 Texas Sonogram law took effect.[xii] One sonogram law has saved an average of 25,000 lives annually since 2014.  Still, the approximately 55,000 preborn babies who have been killed by abortion annually in Texas is an unspeakable tragedy.

 

According to the U.S. Census Bureau data for Texas, there are seven cities that have populations in the 50,000s: Euless (51,277), Port Arthur (53,818), Spring (54,298), Rowlett (56,199), Conroe (56,207), Mansfield (56,368), and New Braunfels (57,740).  Imagine the tragedy if since 2014, one of those cities was destroyed every year with very few, if any, survivors.  Yet that is how many babies were killed by abortion every year since 2014 in Texas, with many more than that before 2014.  This reality is too hard to wrap our minds around.   Any number is too high.   The loss of one life is one too many. Abortion is wrong. It’s genocide.  We should protect all innocent human life.  Preborn babies are the most vulnerable people in the human family and those who are most vulnerable should be the ones who are most protected.  That’s the heart of the matter.

 

The Law is a Teacher

In our American society, so often people base their concept of what is good and right on what the law allows-- based on what is legal. Many people would be shocked to know that a baby’s heartbeat begins beating at such an early stage of pregnancy.  It comes down to this: We show our regard for humanity and innocent human life by how we treat and protect preborn babies in our laws.

 

The effort to pass a Texas Heartbeat law actually started in 2019, when Representative Briscoe Cain filed H.B. 1500, a heartbeat bill that received significant support but never even received a committee hearing in the Texas House or Senate. The filing of this bill, however, started the discussion on this important matter. In fact, in the Texas House, Representative Cain filed the initial Texas Heartbeat bill in 2021 but his bill was effectively transferred to Representative Shelby Slawson, after Representative Cain was assigned to lead the effort for election integrity.  Representative Slawson was in her freshman session but she was up to the task to lead the effort to pass this important and unique pro-life bill. Representative Slawson also has her own personal pro-life witness about the heartache of a miscarriage after hearing her child’s heartbeat.  In the Texas Senate, the Act’s effort was led by Senator Bryan Hughes, a well-respected pro-life leader, sending the message that this bill was a key priority for this session. Ultimately, the Act received support from a bipartisan majority of legislators and an enthusiastic Governor Abbott posted about the bill on Twitter often before holding a well-celebrated bill signing ceremony for it.[xiii]

 

Provisions of the Texas Heartbeat Act

The Act amends existing Texas law with four major provisions: informed consent, prohibition of abortions after a heartbeat is detected, medical recordkeeping and abortion reporting, and civil remedies as the exclusive enforcement mechanism.

 

The informed consent provision of the Act requires an abortion provider to check for a fetal heartbeat according to standard medical practice and to use “appropriate means of detecting the heartbeat based on the estimated gestational age” of the preborn child. [xiv]  According to the Act, a pregnant woman has a compelling interest in knowing the likelihood of her preborn child surviving to full-term birth based on the presence of cardiac activity in order to make an informed choice about her pregnancy.   

 

Texas law already mandates that an abortion provider gives specific information to fulfill the requirements of voluntary and informed consent to an abortion.[xv] As previously mentioned, current Texas law also requires an abortion provider or sonographer to do a sonogram, to give the mother the opportunity to view and hear the sonogram, and to give an explanation of the results of that sonogram to the mother.  The Act requires that the abortion provider informs the mother of the statistical probability of her child surviving to full-term birth.

 

Second, the Act prohibits the abortion of babies with a detectable heartbeat. The abortion provider may not knowingly perform or induce an abortion on a pregnant woman if the abortion provider detects a fetal heartbeat, except in the case of a medical emergency.[xvi]  A medical emergency is defined in the Texas Health and Safety Code as “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a abortion provider, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”[xvii]  According to a Guttmacher Institute survey, only 1% of abortions are committed to save the life of the mother.[xviii]  That means 99% of abortions are committed for elective reasons such as social or economic reasons that are non-medical and non-emergency.

 

Third, the Act requires the abortion provider to maintain records in the mother’s file if an abortion is committed and the record must describe the medical emergency that necessitated the abortion.  The abortion provider must also keep a copy of it in the facility’s records. 

 

Fourth, the Act specifies that it will be enforced exclusively through private civil lawsuits in state court: “No enforcement . . . may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision.”[xix]  It creates the civil cause of action to allow any person, other than an officer or employee of a state or local governmental entity in the state, to bring a civil action against: any person who performs or induces an abortion in violation of the law (primarily abortion providers and healthcare providers); or any person who “aids or abets the performance or inducement of an abortion.”[xx]  This includes insurance providers who pay for or reimburse the costs of a post-detectable heartbeat abortion.  The Act protects the woman on whom the abortion is committed from any prosecution. 

 

The Act lays out in detail provisions regarding injunctive relief and damages.  Violations of the Act will result in statutory damages of $10,000 per post-detectable heartbeat abortion, injunctive relief, and other costs including attorney’s fees.  The statute of limitations for each post-detectable heartbeat abortion is six years.

 

The Act clarifies that state sovereign immunity is not waived by any of its provisions.[xxi]  Potential challengers to the Act will be barred by Eleventh Amendment sovereign immunity from suing to enjoin it or declare it unconstitutional.  Abortion providers will not have either third-party standing or Article III standing[xxii] to challenge the Act in federal court through a pre-enforcement challenge. State actors cannot enjoin, sue to enforce, or intervene in a lawsuit regarding this legislation.  Private citizens will be the ones suing violators of the Act.  The unique enforcement mechanism of this Act makes it legally solid and avoids the pitfalls and constitutional challenges of the current framework of other heartbeat bills.

 

The Act also rejects the Roe decision by acknowledging that pre-Roe state laws in Texas that ban abortions are still valid and enforceable.[xxiii] The Texas Penal Code of 1925 has statutes that make abortion illegal in Texas, except when necessary to save the life of the mother. In 1973, the same year as Roe, the Texas legislature amended the Penal Code but never repealed its abortion statutes. 

 

Lastly, the Act has a comprehensive severability clause to ensure that any invalidation of any section leaves all other sections intact.[xxiv]

 

States with Heartbeat Laws

Since 2013, 14 states have passed heartbeat laws, with North Dakota being the first state and Texas being the fourteenth state to pass such a law.  The 14 states are Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee, and Texas. Of those, the four states that enacted heartbeat laws in 2021 were South Carolina, Oklahoma, Idaho, and Texas. 

 

Unfortunately, all but Oklahoma, Idaho, and Texas’ heartbeat laws have been challenged or blocked in the courts.  The Act counters this outcome by relying on civil enforcement of the law by citizens, making it virtually impossible for a court to strike down.

 

The Texas Heartbeat Act is Constitutional

While other heartbeat laws have been declared unconstitutional because of the viability standard in the Roe case that prohibits states from banning abortion before viability or from causing an “undue burden,” the Act is designed to be immune from challenges under existing Supreme Court precedents.  The Act is constitutional.  Here are some of the ways. 

 

First, the informed consent, testing, and record-keeping provisions in the Act are constitutional under existing precedent.  The comprehensive severability clause that the Act contains ensures that even if other portions of the Act were to be enjoined as unconstitutional, it would not affect the other provisions in the Act.

 

Second, regarding the prohibition of an abortion after a detectable heartbeat, as already mentioned, the Act relies on civil enforcement based on lawsuits brought on by private, non-governmental parties.  The Fifth Circuit Court of Appeals has set a precedent in Okpalobi v. Foster[xxv] that prohibits pre-enforcement federal court challenges of civil remedy laws by abortion providers.[xxvi]  The Okpalobi case is from the state of Louisiana and the Fifth Circuit Court of Appeals decisions create binding precedent for the states of Louisiana, Mississippi, and Texas. Since pre-enforcement challenges are not allowed, abortion providers would have to wait until they are sued before they could challenge the constitutionality of the provision prohibiting abortion after a detectable heartbeat as an affirmative defense to liability.   

 

Third, the Act has an “undue burden” exception to comply with Planned Parenthood v. Casey, though that defense will terminate if Casey is overturned.[xxvii]  The Act places limitations on the standing of an “undue burden” defense.  Standing is prohibited unless the Supreme Court requires standing to be granted to the defendant.

 

Further, over the years, Roe’s prohibition of states from banning abortion before viability or from causing an “undue burden” has shifted, and lately the legal analysis of abortion has evolved.  Now, new state laws banning or regulating abortion cannot be so easily dismissed.  For example, in over three decades of cases, the preborn child has been described as “potential life” or a “potentially living” fetus.[xxviii]  In the 2004 Planned Parenthood Federation v. Ashcroft case, however, the lower court mentioned “living fetus” 16 times.[xxix]  This language was picked up in the 2007 Supreme Court case Gonzales v. Carhart and “living fetus” where it was mentioned 24 times.  This is the first time the Supreme Court did not use the “potential life” euphemism, except when referencing Casey.[xxx] In its findings of fact, Ashcroft also mentioned a “detectable heartbeat” for the first time saying:

 

“As set forth above in the court's findings regarding undue burden, a previable fetus may nonetheless be ‘living’ if it has a detectable heartbeat or pulsating umbilical cord.”[xxxi] 

 

The Gonzales v. Carhart merits brief also references the detectable heartbeat line from Ashcroft.[xxxii]

 

Another example of how the legal analysis has evolved is that the Supreme Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart after determining that the ban did not impose an “undue burden” as laid out in Casey.  Even the Supreme Court declared numerous laws on partial birth abortion as unconstitutional before it finally upheld the federal partial birth abortion ban. Without the persistence of pro-life legislators in passing these laws, this victory may never have resulted at the Supreme Court.

 

Heartbeat as the New Viability Standard

Another reason to use heartbeat as the new viability standard is that the current viability standard has severe flaws.  First, with the developments in science and technology, hospitals are able to save premature babies at younger gestational ages and viability has become an ever-moving target.  Second, as mentioned previously, embryos with a detectable heartbeat in the normal range have a 90% survival rate and those bordering the normal heart rate have an 83% survival rate.

 

Babies born before 28 weeks gestation are considered “extremely preterm.”[xxxiii]  Periviable birth is considered 20 weeks and 0/7 days gestation to 25 weeks and 6/7 days gestation.[xxxiv]  Only a few years ago viability was measured at 24 to 26 weeks gestation.  As a result of advancements in science and technology, medicine has improved the chances of viability in recent years and infants born between 22 and 24 weeks gestation have had an increased percentage of survivability.  In a 2017 study of infants born at 11 centers around the United States between 2000 through 2011, at 22 to 24 weeks gestation, the percentage of infants who survived increased from 30% to 36%, and the percentage of infants who survived without neurodevelopmental impairment increased from 16% to 20%.[xxxv] A 2020 study of 7,578 infants from 195 sites, found that survivability for infants born at 22 to 24 weeks gestation increased from 46% in 2006 to 57% in 2016 with a median birthweight of 21.5 ounces (610 grams).[xxxvi] 

 

The survival rates for periviable infants have increased each year with technology and active treatment and they will continue to improve as science and technology inevitably improve.  Currently, we have been able to save babies as young as 21 weeks gestation (19 weeks post-fertilization).  In June 2020, Baby Richard broke the world record when he was born at 21 weeks gestation weighing 11 ounces and being given a zero percent chance of survival. He has recently celebrated his first birthday.[xxxvii]  

 

While Baby Richard is the latest to break the world record, he is not the only one who survived after being born at 21 weeks gestation.  Here are just some of the others.  In July 2014, Lyla Stensrud broke the world record at the time when she was born at 21 weeks and 4/7 days, and 14.4 ounces.  She just celebrated her seventh birthday this month.[xxxviii]  In December 2019, Jemarius Jachin Harbor Jr. was born at 21 weeks and 0 days and survived weighing 13 ounces.[xxxix]

 

What this points to is that the viability standard is an ever-moving target that shifts with our continued development in medicine and technology.  A more scientifically-consistent standard is a fetal heartbeat, which technology has shown to start to beat at 22 days post-fertilization.

 

Roe and Casey do not need to be overturned in order for the Supreme Court to uphold a ban on abortions after heartbeat.  This would not be the first time that the Supreme Court would overrule aspects of its abortion jurisprudence that appear entrenched, such as the trimester framework in Roe that was discarded. If the viability standard were to remain, the presence of a fetal heartbeat is a much more reliable indicator of a viable pregnancy, that is, one that is likely to successfully result in a live birth. If the Supreme Court were to adjust its abortion jurisprudence to recognize heartbeat as a more sensible viability marker, then a ban on abortions after the baby has a heartbeat would pass constitutional review without Roe being overturned.  Having said that, Texas Values would obviously prefer the groundbreaking legal shift of the overturning of Roe and a ban on abortions at all stages of pregnancy.

 

What About the State’s Interest?

In Gonzales v. Carhart, the Supreme Court confirmed the precedent that is consistent with Casey and that it assumed to be controlling: “the State’s interest in promoting respect for human life at all stages of the pregnancy.”[xl]  This decision was on the heels of Stenberg v. Carhart where Justice Kennedy wrote in dissent, “States also have an interest in forbidding medical procedures which, in the State's reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus.”[xli]  Has the medical profession and society not become insensitive or disdainful enough toward preborn human life that merits the State’s interest being taken into account? 

 

Further, Justice Thomas reminded us in his June Medical Services v. Russo dissent that “the Constitution does not constrain the States’ ability to regulate or even prohibit abortion.”[xlii]

 

Is a Civil Enforcement Mechanism an Effective Strategy? 

Texas Values and many other legal and policy scholars believe that it is.  Since the Act’s enforcement mechanism gives any person the ability to sue abortion providers and others for violating it, it is different from other heartbeat laws that have been declared unconstitutional in other states.  This Act purposely excludes governmental enforcement in order to avoid being caught up in the courts by challenges from pro-abortion organizations. The Act’s legal strength and constitutionality rely on its enforceability by private citizens.  With the Okpalobi case as the precedent in the Fifth Circuit Court of Appeals, the Act is designed to prohibit pre-enforcement federal court challenges of private civil lawsuits. 

 

Another recent and important development points to the strength of a civil enforcement mechanism in a different Texas law.  In May 2021, Lubbock, Texas became the largest “sanctuary city for the unborn,” making it one of 32 cities since 2019 to declare itself as such.[xliii]  The Lubbock ordinance prohibits abortions within its city limits and allows private citizens to file civil lawsuits against anyone breaking this law.  Just like the Act, the ordinance is not set to be enforced by the government.   According to the ordinance, it is unlawful to aid or abet an abortion that occurs in the city of Lubbock and it will be enforced through a private right of action.[xliv]

 

The Lubbock ordinance was challenged by Planned Parenthood of Greater Texas Surgical Health Services in a lawsuit. In response, the City of Lubbock issued the following statement: “This ordinance was enacted by the voters of Lubbock through the Charter petition process and the Lubbock City Council certified the election results on May 11, 2021. The City will vigorously defend this ordinance and looks forward to presenting that defense in court.”[xlv]  On June 1, 2021, the judge tossed out the challenge saying that Planned Parenthood did not have standing to sue the city: “Because plaintiffs fail to show, as they must, that they have Article III standing to sue the city, the Court dismisses the case for lack of jurisdiction.” [xlvi] The law subsequently went into effect on June 1 and the Planned Parenthood in Lubbock is now prohibited from doing abortions.  Planned Parenthood filed a motion to reconsider in early July. 

 

On July 13, 2021, a number of abortion businesses and organizations, including Planned Parenthood, Whole Woman’s Health, and the Lilith Fund filed a federal pre-enforcement challenge against Texas Attorney General Ken Paxton, Texas district judges, Texas Health and Human Services, and others regarding the Act.[xlvii]  Of note, they filed a lawsuit against governmental parties that would have no part in the enforcement of this Act and they seek to enjoin clerks from accepting complaints.  The plaintiffs are prematurely forcing the case into court, but doing so in the wrong court and against the wrong defendants.  Given the similarity between the enforcement mechanism of the two laws, Texas Values is certain that this meritless lawsuit will also be thrown out.

 

Support For the Texas Heartbeat Act

In addition to the support the Act received in the Texas Legislature, key groups that supported the Act included Texas Values, Human Coalition Action, Family Policy Alliance, Concerned Women for America (CWA) Texas, Texas Right to Life, Janet Porter (Faith 2 Action), Chairman Allen West (Republican Party of Texas Chairman), SBA List, Texas Eagle Forum, ACLJ, Texas Teens for Life, Fredericksburg Tea Party, Texas Young Republicans, Baylor Bears for Life/Students for Life Action, Texas Pastor Council, Texas Faith and Freedom Coalition, and Ethics and Religious Liberty Committee of SBTC.

 

Key pro-life leaders supporting the Act include Jonathan Saenz, Abby Johnson, Gov. Greg Abbott, Dr. James Dobson, Ann Hettinger, Lauren Muzyka, Jason Jones, Kelly Shackelford, Gianna Jessen, Janet Porter, Walter Weber, Claire Culwell, Tim Von Dohlen, Karen Garnett, and Pastor Dave Welch.

 

Conclusion

Texas Values believes that the Act follows sound science and strong strategy to avoid the pitfalls of other heartbeat laws.  If the private civil enforcement mechanism proves to be effective, such a provision ought to be considered for inclusion in other types of bills.  More importantly, it means that Texas will limit abortions until the time of a detectable heartbeat and spare the lives of at least 90% of preborn children in Texas who are killed by abortion during early pregnancy. The Act is about protecting innocent human life-- that’s the heart of the matter.

_______________________

[i] “Gestational age” is the time since the last menstrual period (LMP), which occurs approximately two weeks before ovulation and fertilization.  “Post-fertilization age” is the time since fertilization.  Therefore, 6 weeks gestation is equivalent to 4 weeks post-fertilization. 

[ii] "Heart and Circulatory System," Endowment for Human Development, accessed July 12, 2021, https://www.ehd.org/movies/10/Heart-and-Circulatory-System;

"Can Fetal Heart Rate Predict a Miscarriage?", BabyMed, last modified June 23, 2021, https://www.babymed.com/can-fetal-heart-rate-predict-miscarriage#;

"When can I hear my baby's heartbeat?", Babycenter, last modified November 3, 2020,

https://www.babycenter.com/pregnancy/health-and-safety/when-can-i-hear-my-babys-heartbeat_10349811.

[iii] However, it is relevant to note that Texas never repealed its pre-Roe statutes that ban all abortions. 

[iv] Texas Values, video, accessed July 12, 2021,  https://fb.watch/6q2rlxOUIj/;

“Press Briefing by Press Secretary Jen Psaki,” White House Briefing Room, last modified May 20, 2021, https://www.whitehouse.gov/briefing-room/press-briefings/2021/05/20/press-briefing-by-press-secretary-jen-psaki-may-20-2021/.

[v] "Fetal development," MedlinePlus, NIH, National Library of Medicine, accessed July 12, 2021, https://medlineplus.gov/ency/article/002398.htm.

[vi] Arianna D'Angelo and Nazar N. Amso, Ultrasound in Assisted Reproduction and Early Pregnancy (CRC Press, Oct 22, 2020), p. 171-172, https://books.google.com/books/about/Ultrasound_in_Assisted_Reproduction_and.html?id=lEUPEAAAQBAJ.

[vii] Peter M. Doubilet and Carol B. Benson, "Outcome of first-trimester pregnancies with slow embryonic heart rate at 6-7 weeks gestation and normal heart rate by 8 weeks at US," Radiology 236 (August 2005):643-6, https://pubmed.ncbi.nlm.nih.gov/15994999/

[viii] Ibid.

[ix] “Abortion Surveillance — United States, 2018,” Centers for Disease Control and Prevention, last modified November 27, 2020, https://www.cdc.gov/mmwr/volumes/69/ss/ss6907a1.htm.

[x] Duncan, F., Que, E., Zhang, N. et al. The zinc spark is an inorganic signature of human egg activation. Scientific Report 6, 24737 (April 26, 2016), https://doi.org/10.1038/srep24737.   

[xi] "Induced Terminations of Pregnancy," Texas Health and Human Services, ITOP Statistics, accessed July 12, 2021, https://www.hhs.texas.gov/about-hhs/records-statistics/data-statistics/itop-statistics.

[xii] Ibid.

[xiii] "Gov. Abbott Signs Pro-Life Texas Heartbeat Act," Texas Values, last modified on May 19, 2021, https://txvalues.org/2021/05/19/gov-abbott-signs-pro-life-texas-heartbeat-act/.

[xiv] Sec. 171.203.  

[xv] Sec. 171.012.

[xvi] Sec. 171.204.  

[xvii] Sec. 171.002.

[xviii] Lawrence B. Finer et al, "Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives," Guttmacher Institute, Perspectives on Sexual and Reproductive Health, Volume 37, Number 3, (September 2005), https://www.guttmacher.org/sites/default/files/pdfs/journals/3711005.pdf at Table 2.

[xix] Sec. 171.207.

[xx] Sec. 171.208.

[xxi] Sec. 171.211.

[xxii] U.S. Constitution, Article III, https://constitution.congress.gov/constitution/article-3/.

[xxiii] Sec. 171.207.

[xxiv] Sec. 171.212.

[xxv] Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc), https://law.justia.com/cases/federal/district-courts/FSupp/981/977/2282376/.    

[xxvi] In Okpalobi v. Foster, the Fifth Circuit held that for a state official to have the requisite “connection” to apply the Young exception, the official must have “the particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.”  Without a duty to enforce a statute, officers of the state cannot be enjoined from enforcing a statute preemptively.

[xxvii] Sec. 171.209.

[xxviii] Janet Porter, A Heartbeat Away, (Frontline: April 14, 2020), 34.

[xxix] Planned Parenthood Fed. of America v. Ashcroft, 320 F. Supp. 2d 957 (N.D. Cal. 2004), https://www.courtlistener.com/opinion/2469000/planned-parenthood-fed-of-america-v-ashcroft/.

[xxx] Gonzales, Attorney General v. Carhart et al., 550 U.S. 124 (2007), https://www.supremecourt.gov/opinions/06pdf/05-380.pdf.

[xxxi] Ibid.

[xxxii] "Living" refers to a fetus that is either potentially or actually viable: i.e., a fetus that "has a detectable heartbeat or pulsating umbilical cord." Gonzales v. Carhart- Brief (Merits) https://www.justice.gov/osg/brief/gonzales-v-carhart-brief-merits.

[xxxiii] "Preterm birth," World Health Organization, last modified February 19, 2018, https://www.who.int/news-room/fact-sheets/detail/preterm-birth;

 "Extremely Preterm Birth," American College of Obstetricians and Gynecologists, last modified August 2019, https://www.acog.org/womens-health/faqs/extremely-preterm-birth.

[xxxiv] "Periviable Birth," American College of Obstetricians and Gynecologists, Obstetric Care Consensus, Number 6 (October 2017), https://www.acog.org/clinical/clinical-guidance/obstetric-care-consensus/articles/2017/10/periviable-birth.

[xxxv] Noelle Younge, M.D. et al, "Survival and Neurodevelopmental Outcomes among Periviable Infants," The New England Journal of Medicine 376, (February 16, 2017): 617-628, https://www.nejm.org/doi/full/10.1056/nejmoa1605566.

[xxxvi] Mihai Puia-Dumitrescu et al, "Medications and in-hospital outcomes in infants born at 22–24 weeks of gestation," Journal of Perinatology, Volume 40, (February 17, 2020): 781–789, https://www.nature.com/articles/s41372-020-0614-4.

[xxxvii] "Baby Richard Thrives As He Breaks Guinness World Record," CBS Minnesota, last modified June 23, 2021, https://www.msn.com/en-us/lifestyle/lifestyle-buzz/baby-richard-thrives-as-he-breaks-guinness-world-record/ar-AALmVQl.

[xxxviii] Mary Kekatos, "The most premature baby to ever survive : Mom of miracle Lyla, who was born at just 21 weeks and weighed less than one pound, breaks her silence and reveals how she had to beg doctors to resuscitate her daughter, who is now a thriving 4-year-old," DailyMail, last modified December 26, 2018, https://www.dailymail.co.uk/health/article-6497947/Smallest-preemie-baby-survivor-Lyla-Stensrud-born-21-weeks-one-pound-look-now.html.

[xxxix] George Franco, "Extreme preemie born at 21 weeks young at Emory Decatur Hospital," Fox 5 Atlanta, last modified December 26, 2019, https://www.fox5atlanta.com/news/extreme-preemie-born-at-21-weeks-young-at-emory-decatur-hospital.

[xl] Gonzales, Attorney General v. Carhart, at 33.

[xli] Stenberg v. Carhart, 530 U.S. 914 (2000) at 961.

[xlii] June Medical Services L.L.C. v. Russo, 591 U.S. ___ (2020),  https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf.

[xliii] "Sanctuary Cities for the Unborn," accessed July 12, 2021, https://sanctuarycitiesfortheunborn.com/

[xliv] “Ordinance Outlawing Abortion Withing the City of Lubbock, Declaring Lubbock a Sanctuary City for the Unborn, Making Various Provisions and Findings, Providing for Severability, Repealing Conflicting Ordinances, and Establishing an Effective Date,” accessed July 12, 2021, https://ci.lubbock.tx.us/storage/images/7I1admNrFWRf43nrtfCDY53mplZbg85H0QGTMEhD.pdf.  

[xlv] "City Responds to Lawsuit Filed by Planned Parenthood," City of Lubbock, accessed July 12, 2021, https://ci.lubbock.tx.us/news/1621343886-city-responds-to-lawsuit-filed-by-planned-parenthood.

[xlvi] Planned Parenthood of Greater Texas Surgical Health Services v. Lubbock (2021),

https://prawfsblawg.blogs.com/files/2021-06-02-decision.pdf

[xlvii] Whole Woman’s Health v. Jackson (2021),

https://reproductiverights.org/wp-content/uploads/2021/07/WWH-v.-Jackson-Complaint.pdf

heartbeat laws  | abortion  |  Texas  |  civil enforcement

Arina Grossu, M.S., M.A., has a Master of Science in Bioethics from the University of Mary and a Master of Arts in Theology from the Dominican House of Studies. Ms. Grossu is a Policy and Communications Advisor to Texas Values.

 

Jonathan Saenz, Esq., is a graduate of the University of Houston Law Center and a licensed attorney in Texas. Mr. Saenz is the founder and President of Texas Values, a faith-based nonprofit law and public policy organization.