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Texas

Summary of Current (and Most Recent) Abortion and Personhood Laws

Abortion Prohibition

  • The Texas Governor signed into law the Human Life Protection Act in 2021. This law was drafted to go into effect 30 days after official publication of a Supreme Court opinion overturning Roe v. Wade, so it became effective on August 25, 2022. Tex. Health & Safety Code, §§ 170A.001 to 170A.007.
    • The law prohibits performing, inducing, or attempting to perform an abortion unless a physician has determined that the pregnancy is life-threatening or poses a serious risk of substantial impairment of a major bodily function unless an abortion is performed or induced.

Civil Suits for Performing, Inducing or Aiding & Abetting Abortion

  • The Texas Heartbeat Act (S.B. 8) went into effect in 2021 allowing private citizens to sue anyone who performs or induces an abortion, or knowingly engages in conduct that aids or abets the performance or inducement of an abortion after a “fetal heartbeat” has been detected, except in the case of a documented medical emergency.
    • The scope of conduct that “aids or abets” an abortion is unclear, except that the law specifically references paying for or reimbursing the costs of an abortion through insurance or otherwise.
    • If a citizen is successful in an action the court is instructed to award damages of not less than $10,000 for each abortion, plus costs and attorney’s fees.
    • The Human Life Protection Act states that it does not abolish or impair any other remedy available in a civil suit, so presumably a private citizen could continue to pursue civil actions under Texas Heartbeat Act for aiding and abetting abortion.

Pre-Roe Abortion Prohibition

  • Statutes that were in effect from 1925 (and earlier) until they were “impliedly repealed” by Roe v. Wade prohibited any person administering a drug or any means to procure an abortion. Following the Dobbs decision, the Texas Supreme Court ruled that this pre-Roe law was still enforceable. Considering the more recently passed laws described above, it’s not clear 25 whether or how prosecution and enforcement of this law might be reconciled with those. Texas Rev. Civil Stat. Tit. 4512.1-.6

Potential impact of the law on and references to IVF and reproductive medicine if any

  • It does not appear that current abortion restrictions in Texas will apply to IVF or other reproductive medicine services outside the context of a pregnancy.
  • There are no explicit references to IVF or reproductive medicine services in current abortion laws.
  • The potential civil penalties in the Texas Heartbeat Act for aiding and abetting an abortion apply only to abortions performed after detection of fetal cardiac activity within the gestational sac, so it would not be applicable to any services or procedures related to an embryo pre-implantation. 

Relevant definitions

In The Human Life Protection Act includes the following definitions:
  • Abortion” means using or prescribing any instrument, drug or other means with the intent to cause the death of an unborn child of a woman known to be pregnant.
  • Fertilization” means the point in time when a male human sperm penetrates the zona pellucida of a female human ovum.
  • Unborn child” means in individual living member of the homo sapiens species from fertilization until birth, including the entire embryonic and fetal stages of development.
The Texas Heartbeat Act includes the following definitions:
  • Fetal heartbeat” means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.
  • Unborn child” means a human fetus or embryo in any state of gestation from fertilization until birth.
Note, however, in both statutes the term “unborn child” is used only in the context of a pregnancy.

Penalties for violations of the applicable abortion restrictions

  • The Human Life Protection Act includes both criminal and civil penalties, as well as disciplinary action against the licensure or permit of a physician or other health care practitioner who performs, induces, or attempts an abortion in violation of the law. Texas Health & Safety Code §§ 170A.004, 170A.005, 170A.007.
  • The Texas Heartbeat Act provide for civil action by private citizens against individuals who perform or induce an abortion, or aid and abet the performance or inducement of an abortion, in violation of the law. Texas Health & Safety Code § 171.208.

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