Texas Heartbeat Act - a modern reinterpretation of The Handmaid’s Tale

The Texas Heartbeat Act, introduced as Senate Bill 8 (‘SB8’), came into effect on the 1st of September 2021. Described by U.S District Judge Robert Pitman as an “offensive deprivation” of women’s rights, the Act bans abortion once cardiac activity in an embryo is detected, which can occur as early as six weeks into a pregnancy. Notably, the Act makes no exceptions in cases of rape or incest. 

The Act has aroused vast amounts of criticism and controversy, particularly due to the peculiar nature of its enforcement. Private citizens are empowered to take legal action against abortion providers and any others who directly or indirectly provide support for an unlawful abortion, including financers, lawyers, and even taxi drivers who transport a patient to a clinic. These citizens are not required to have any personal connection to the patient, abortion provider, or defendant in order to bring about a lawsuit under the Heartbeat Act. Josh Blackman, a constitutional law professor, explains how the Act enables any “random” person to effectively turn into a “private attorney general” and bring a lawsuit against an individual they do not know. Furthermore, the Act provides an incentive to private individuals in the form of statutory damages of up to $10,000 dollars, alongside any court or attorney fees, if the defendant is found guilty. Characterised by U.S Supreme Court Justice Sonia Sotomayor as “not only unusual, but unprecedented,” the Act is entirely unique in that it relies on enforcement by private individuals through civil lawsuits rather than by the government, or by criminal or civil enforcement agencies. Essentially, it “delegate[s] enforcement [...] to the populace at large,” which, Sonia argues, insulates the state against “responsibility from implementing and enforcing the regulatory regime.” 

In the landmark case of Marbury v Madison [1803], the Supreme Court affirmed its authority to review legislative and executive actions to determine constitutionality. Where the laws conflict with the Constitution, the Court must declare such laws as unconstitutional and invalid.  This Act, described by President Joe Biden as a “blatant violation of constitutional rights,” fundamentally departs from the rights established under Roe v Wade [1973]. Roe’s landmark decision ruled that the U.S Constitution protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. In comparison, the Texas Heartbeat Act entirely disregards a woman’s right to maintain her own bodily integrity by exercising control over her life in ways that are protected by the Constitution. Greg Abbott, Governor of Texas who signed the Bill into law on May 19th, argued that in cases of rape, the Act does not force raped women to give birth; they have “at least six weeks” to terminate a pregnancy. However, a national probability sample of American women who underwent rape-related pregnancies revealed that 32.4% of victims did not discover they were pregnant until the second trimester. Abbott’s argument does not take into consideration the trauma and medical needs of rape victims and the delay this may cause in abortion procedures. 

Further, the Heartbeat Act enables systemic racism, as it disproportionately affects women from minority backgrounds and women of colour. Congressional Candidate Jessica Cisneros spoke out, stating that “it's always women of color and low-income communities that are the most harmed.” Michele Troutman highlighted that many women do not have access to reliable and affordable contraception, leading to higher rates of unplanned pregnancies. In 2011, 47% of all pregnancies in the U.S were unintended, and these rates are proportionally higher among lower income and minority women. While affluent women still have the option to travel to another state for an abortion, this is not feasible for most individuals, especially those from lower socio-economic or underrepresented backgrounds. The Act therefore perpetuates the structural issue of systemic racism and increases inequalities, making it not only unethical, but practically impossible for these individuals to access safe abortions without the fear of being sued.

The most telling months are yet to come. While the Heartbeat Act is currently only present in Texas, there is an unsettling and real fear that other states may use the Senate Bill 8 as a blueprint to manoeuvre around Roe v Wade in ways they weren’t able to before. By letting the government decide whether or not a woman can bear a child in the twenty-first century, perhaps we are inching closer to the totalitarian state of Gilead in Margaret Atwood's The Handmaid’s Tale.