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The good, bad, and ugly of the Texas Heartbeat Act

By Deborah Stilt — The Texas Heartbeat Act has caused chaos in the abortion industry and wild celebration in the pro-life movement. But what exactly is in the law, why did the Supreme Court refuse to obstruct it, and will temporary gains bring long-term protection to pre-born children in Texas?

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The last several days have been full of celebration from pro-lifers across America regarding the U.S. Supreme Court’s refusal to obstruct the Texas Heartbeat Act—a law that seeks to ban abortion after a heartbeat is detected. The refusal has been met with a commensurate amount of “wailing and gnashing of teeth” from abortion advocates. Meanwhile, conflicting reports are coming out of Texas. All abortion facilities are closed. It’s business-as-usual at abortion facilities. The law is saving 150 lives every day. The law isn’t saving any lives at all. What are we to believe?

It is time for us to pause and examine the merits and weak points in Texas’s approach, both short-term and long-term, so we can take the best next step to end abortion.

The good, the bad, and the ugly

The Personhood Alliance celebrates that this law has no exception for rape and incest or fetal anomaly. All human beings are created in the image of God and are imbued with equal worth and dignity, regardless of manner of conception, disability, or medical prognosis. This is the standard the Personhood Alliance and all of its affiliates hold up consistently and without compromise. We encourage all other life-honoring organizations to do the same.

Every single human life is valuable, and we rejoice when lives are saved. But as we celebrate the lives saved in the legal turmoil and confusion Texas’s approach has thankfully caused, we must also consider whether the Texas Heartbeat Act will save lives long-term. Will the law actually end abortion in Texas and elsewhere it is tried? Or will there be unintended consequences?

In summary, while certainly well-intentioned, the Texas Heartbeat Act reveals four major points of concern:

  1. Pre-born children without detectable heartbeats are not protected, and the detection is in the hands of the abortionist.
  2. There is an explicit exception for “medical emergency” that is ripe for exploitation.
  3. The law is not enforceable apart from civil lawsuits, which may provide temporary gains without long-term success.
  4. The law still bows to the tyrannical power of the U.S. Supreme Court and the unjust decision of Roe v. Wade.
Point 1: The fox, the hen house, and unequal protection

“This heartbeat law, like every heartbeat law, relies on the abortionist to determine whether the heartbeat can be detected,” explains Sarah Quale, president of Personhood Alliance Education. “This is the fox guarding the hen house. Why would we ever give the person about to kill a child for money the power to measure any sign of life to determine their fate? There should be absolutely no circumstance in which there is room for interpretation, or a reliance on honesty or integrity, when it comes to the abortion industry.”

Sec.A171.204. (b) A physician does not violate this section if the physician performed a test for a fetal heartbeat as required by Section 171.203 and did not detect a fetal heartbeat.

Quale continues:

“Like all heartbeat laws, this one does not extend equal protection to those human beings who either do not yet have a heartbeat or whose heartbeat is not detectable via ultrasound, whether intentionally missed or not. To be both effective and moral, the law should explicitly declare the legal personhood of pre-born human beings, from the moment of fertilization, without exception. Equal protection under the law.

This law does have a ‘no right to abortion’ clause, which is good. It reads: ‘This subchapter does not create or recognize a right to abortion before a fetal heartbeat is detected’.

However, the text makes an implicit claim to the mother’s ‘right to choose to continue her pregnancy’ in reference to being able to know whether or not her child has a heartbeat.”

Sec.A171.202. The legislature finds, according to contemporary medical research, that: (1) fetal heartbeat has become a key medical predictor that an unborn child will reach live birth; (2) cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac; (3) Texas has compelling interests from the outset of a woman’s pregnancy in protecting the health of the woman and the life of the unborn child; and (4) to make an informed choice about whether to continue her pregnancy, the pregnant woman has a compelling interest in knowing the likelihood of her unborn child surviving to full-term birth based on the presence of cardiac activity. [emphasis added]

Point 2: The exploitable “medical emergency”

The Texas Heartbeat Act has an explicit exception for a “medical emergency.” This exception is similar to a “life and health of the mother” exception in its vagueness and its potential to be exploited.

Sec.A171.205. (a) Sections 171.203 and 171.204 do not apply if a physician believes a medical emergency exists that prevents compliance with this subchapter.

In the Texas statute, “medical emergency” is not defined, but the law clearly implies an exception for a threat to the mother’s life—to be determined and documented, of course, by the abortionist.

Matt Sande, Personhood Alliance vice president, provides insight:

“In Wisconsin a few years back, a fetal pain/20-week ban was enacted (2015 Wisconsin Act 56) that had a definition of medical emergency that permitted direct abortion to save the life and protect the health of the mother. We worked hard to amend it out but failed. At the time I testified:

In sum, the ‘medical emergency’ language in SB 179/AB 237, at worst, constitutes an explicit life-of-the-mother exception by employing the term “medical emergency” in two sections of current law that entail direct abortion… At best, the legislation is so ambiguous, contradictory, and inconsistent that it will allow a physician to make a credible argument that his or her performance of a direct abortion in a medical emergency is legally permissible.

Ultimately, the law did not work. Not only did the medical emergency exception violate equal protection, it provided a loophole for physicians to continue killing post-20-week babies at roughly the same rate prior to enactment.

The language matters.”

It is a common misconception, even in pro-life circles, that an exception must be made to allow abortion to save the life of the mother. This is an unnecessary political compromise, not a medical reality. There is never a reason to intentionally kill a child in order to preserve the life or health of the mother. In a medical emergency, physicians should always work to save both lives. Attempting to save a child’s life and failing to do so is not morally equivalent to intentionally killing the child. “Life and health of the mother” exceptions and others, like rape, incest, fetal anomaly, and medical emergency are used as legal loopholes to prolong the injustice of abortion in America. And they contradict one of the key principles at the foundation of the pro-life movement—that every human being is valuable and therefore, deserves equal protection under the law.

Point 3: Enforceability and legal chaos

The Texas Heartbeat Act relies entirely on civil prosecution as a means of enforceability. This is essentially why the U.S. Supreme Court opted to let it stand. Civil suits are matters of state law and therefore, are not normally subject to federal judicial review. It is a stunning legal strategy that evades the lawsuits that groups like Planned Parenthood and the ACLU typically use to quash their opponents. And while the civil approach has gained at least a temporary win in the confusion and chaos it has caused, it may not be effective long-term.

It is likely, in the beginning, that many could come forward to file a lawsuit—the father of the child, the woman who regrets her abortion, an abortion worker who wants out, a pregnant pro-life woman who enters an abortion facility to test whether the abortionist is following the law. Records would be subpoenaed; ultrasound results entered into evidence. But beyond the aforementioned people, how could an average citizen who is not witnessing the abortion inside the facility prove a specific child had a heartbeat before he or she was killed? How many prosecutors would be willing to step into the fray? How many judges would rule fairly? How will the courts manage multiple lawsuits against the same abortionist?

Though this unique civil approach hits abortionists where it matters most to them—in their pocketbooks—might this uncharted, chaotic legal territory be the downfall of the law itself?

Point 4: The tyranny of the Supreme Court

In the Texas law, there are several references to the undue burden test held up by the U.S Supreme Court in Planned Parenthood v. Casey and how that applies in terms of whether an abortionist can even be sued at all. Here is one example:

Sec.A171.209. (a)A defendant against whom an action is brought under Section 171.208 does not have standing to assert the rights of women seeking an abortion as a defense to liability under that section unless: (1) the United States Supreme Court holds that the courts of this state must confer standing on that defendant to assert the third-party rights of women seeking an abortion in state court as a matter of federal constitutional law; or (2) the defendant has standing to assert the rights of women seeking an abortion under the tests for third-party standing established by the United States Supreme Court. (b) the defendant in an action brought under Section 171.208 may assert an affirmative defense to liability under this section if: (1) the defendant has standing to assert the third-party rights of a woman or group of women seeking an abortion in accordance with Subsection (a); and (2)the defendant demonstrates that the relief sought by the claimant will impose an undue burden on that woman or that group of women seeking an abortion.

Ideally, the Texas law would simply claim the state’s Tenth Amendment powers, not continue to cower under the tyranny of the Court and accept the unjust decision of Roe, Casey, and every other abortion-related precedent.

The bottom line: Abortion will continue

“We must take the cold, hard economics of abortion into account when examining any law that seeks to regulate, rather than end abortion,” notes Personhood Alliance president Les Riley. “When the COVID-19 crisis hit America’s shores in early 2020, many businesses were forced to shut down. Governments and corporations started doling out regulations: social distancing, mask mandates, curfews, sanitation policies, and so on. Yet even in the face of these obstacles, many businesses found ways to adapt and keep serving their customers. Many corporations had record profits.”

“When abortion is regulated,” says Riley, “Planned Parenthood and abortion businesses always adapt. They fight the regulations politically and legally. They use them for public relations and fundraising. Ultimately, they figure out how to adapt to and work around them.”

Already, the abortion industry is gearing up to circumvent the Texas Heartbeat Act. The internet is flooded with posts and articles advising women in Texas how to obtain an abortion now that the law is in place. Lyft and Uber have put out statements that they will protect their drivers from any civil lawsuits for transporting a woman to get an abortion. And Planned Parenthood has already been granted a temporary restraining order against Texas Right to Life—the organization that helped author the Texas Heartbeat Act.

The bottom line is, when abortion is merely regulated or limited, the abortion industry and its supporters WILL find a way to continue to kill children—either in public defiance or by promoting and increasing do-it-yourself abortions via the abortion pill.

Saving one, losing many

Many principled pro-life Christians, who otherwise have concerns about the compromised incrementalism of the national pro-life movement, have said recently, “If we can save one life, it’s worth it.”

It is important to acknowledge and celebrate when lives are spared from the violence of abortion. But the wise, loving, biblical response should be—let’s rejoice for those who were saved in spite of our shortcomings, while remembering our principles and adjusting our methods accordingly. This means protecting every human life equally by establishing legal personhood for pre-born children, without exception and without compromise.

“The Personhood Alliance and our affiliates seek to find and declare the Truth,” says Riley. “We seek to be biblically principled and strategically effective. We work to avoid the ditches of both pragmatism and chaotic revolution. We endeavor to re-establish justice, extend mercy, and be instruments to equip the church, families, and individuals across the nation to protect every image bearer of God in love and in law.”

To learn more about how the Personhood Alliance stands for human life and human dignity, without exception and without compromise, subscribe to our email list.

Deborah Stilt is the vice president of Personhood Alliance Education and the social media coordinator for the Personhood Alliance. She has been active in pro-life media and foster care advocacy for several years. But most importantly, she’s a California mom who is fighting against the lies of the culture and for the protection of every human being without exception.

9 Comments on “The good, bad, and ugly of the Texas Heartbeat Act

  1. Excellent summary! Thanka Deborah and Personhood Alliance!

  2. Really well-reasoned, measured response. I hope everyone takes time to read and digest this article.

    • Thank you, Keith. It is so important to consider how we, as the pro-life movement, can do better.

    • Thank you, Dan – that means a great deal coming from you!

  3. The private enforcement mechanism in the Texas Heartbeat law worked in this case to prevent judicial interference since there is no clear person or entity that could be sued to block the law.
    Unfortunately, we can’t take too much comfort in that since the Court’s decision was explicitly limited to that procedural ground without deciding the merits of the case. The Court even implied that it is just a matter of time before there will be a procedurally proper challenge to the Texas law. The Texas case does nothing to change Roe v. Wade or Planned Parenthood v. Casey which prohibit state laws that impose what the Court calls an “undue burden” on women obtaining abortions before the baby’s “viability,”
    Before we get too excited about the private enforcement mechanism, we should consider how surprising it would be if state legislatures are allowed to deputize private citizens to restrict constitutional rights (pseudo “rights” in this case) that the state cannot restrict directly. What would stop a tyrannical state from promoting private lawsuits against religious practices or free speech that the state can’t outlaw directly under the first amendment, or lawsuits against gun ownership that the state can’t outlaw under the second amendment?
    Still, we can hope that the Court’s willingness to incur the wrath of the abortion industry in this case is some indication that it might have the courage to overturn past abortion cases this fall when the Court hears the case of Dobbs vs. Jackson Women’s Health Organization. The Dobbs case will give the Court an opportunity to decide that Roe and Casey were fundamentally wrong and there is no Constitutional right to abortion.
    Meanwhile, the abortion industry is continuing its relentless war against the unborn, including possible efforts to enact federal legislation to enshrine a national right to abortion preempting state restrictions. What we really need is for the Supreme Court to put a stop to this by recognizing, consistent with modern medical science and genetics, that unborn babies are legal “persons” with an enforceable right to life under the Fourteenth Amendment to the Constitution.

  4. Pingback: The Texas Heartbeat Act: The good, bad, and ugly | Deacon John's Space

  5. The Texas law won’t stand, but it has already served an important role in highlighting that preborn babies have heartbeats. Any woman now considering an abortion must now, consciously or not, reflect on who (not what) is being killed, even for an instant. I believe that some lives will be spared. Next year, the Mississippi statute will put a stake in Roe v Wade. But my home state, New York, will be unaffected by any of this for now. New York passed abortion legislation years before Roe. In the end though (however and whatever and whenever) we will win.