Policy Playbook: Texas SB-8

Author: Summer Chavez, DO, MPH, MPM (EM Attending Physician, The University of Texas Health Science Center at Houston) // Reviewed by: Alex Koyfman, MD (@EMHighAK) 

Case:

A 28-year-old woman with no significant PMHx and a chief complaint of vaginal bleeding has just been roomed in your pod. While you chart check, you realize that the patient was seen just 3 days earlier after falling off a horse and incidentally found to be pregnant. She had no other injuries and was instructed to follow up with her OB. The prior team’s notes report her LMP was unknown as she the patient stated she had irregular periods. While you start putting in orders, you realize you’ve been hearing a lot of about “this new abortion law”. What does that mean for your clinical practice?

What’s the issue?

Texas state legislature passed Senate Bill 8 (SB-8), effective 9/1/21, that has significant impact on abortions and simultaneously allows private citizens a pathway for civil involvement.¹ Some important definitions as defined within the bill itself: ¹

• Fetal heartbeat: “Cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac”.
• Pregnancy: “Begins with fertilization; occurs when the woman is carrying the developing human offspring; and is calculated from the first day of the woman’s last menstrual period.”
• Standard medical practice: “The degree of skill, care, and diligence that an obstetrician of ordinary judgment, learning, and skill would employ in like circumstances.”
• Unborn child: “Human fetus or embryo in any stage of gestation from fertilization until birth.”

We’ll also go over some important key concepts within the bill. According to SB-8, that in order “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.”^1(p8) A fetal heartbeat needs to be detected using “standard medical practice” and recorded in the patient’s medical record. ¹Importantly, unless there is an exception for a medical emergency, SB-8 states, “a physician may not knowingly perform or induce an abortion on a pregnant woman unless the physician has determined…whether the woman’s unborn child has a detectable fetal heartbeat.”¹ Similar prohibitions are in effect once a fetal heartbeat is detected.^1(p8) Section 171.205 allows exceptions for medical emergencies, requiring physicians to note in the patient’s medical record that a medical emergency was present, necessitating the abortion and the medical condition present.¹

A unique aspect of this law is how it is enforced–instead of criminal penalties, private citizens can enforce civil action.^1(p) Individuals who could be at risk include anyone who:

• “Performs or induces an abortion.”
• “Knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through the insurance or otherwise.”
• “Intends to engage in the conduct.”^1(p)

Furthermore, for each abortion performed, aided or abetted against the prescribed rules here, defendants would pay a minimum of $10,000 in statutory damages as well as attorney’s fees.¹ Individuals have four years to bring suit.¹

SB-8 also lists inadmissible defenses for not following the law:

• “Ignorance or mistake of law”
• “A defendant’s belief that the requirements…are unconstitutional”
• “A defendant’s reliance of any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct”
• “A defendant’s reliance on any state or federal court decision that is not binding on the court in which the action has been brought”
• “Non-mutual issue preclusion or non-mutual claim preclusion”
• “Consent of the unborn child’s mother to the mother”
• “Any claim that enforcement…or imposition of civil liability against defendant will violate the constitutional rights of third parties.”¹

It’s also important to note there are no exceptions to SB-8 for rape, sexual assault, incest, etc. Because no state official enforces the law, there is no one to necessarily sue for legal challenges.² Not just physicians are open to legal challenges, but also counselors, people who driver someone to the appointment, providing funding, family members, other health care providers, etc.² Prior to this law, most abortions in Texas were banned after approximately 20 weeks.² The Supreme Court declined to challenge the law after a 5-4 vote.^3,4  There also are active court challenges in Mississippi which could change the way states regulate abortion.⁵ Similar laws could be passed in additional states, leading to more restrictive abortion laws.

Why does it matter?

Make no mistake, there’s lots of controversy about this new law and the implications from it. The impact on women’s rights, reproductive freedom, parallels to mask wearing and mask mandates, financial implications, and beyond are far-reaching. The Texas Medical Association strongly opposed the bill, stating SB-4 “criminalizes the practice of medicine… [and interferes] with the patient-physicians relationship.”⁶ The American Medical Association released their own statement, reporting SB-8 “interferes in the patient-physician relationship and places bounties on physicians and health care workers simply for delivering care. Opening the door to third-party litigation against physicians severely compromises patient access to safe clinical care.”⁷ As it currently stands, the Department of Justice sued the state of Texas, requesting a permanent injunction and asked a federal judge to provisionally prevent enforcement of the law.^4,8

What can I do about it?

• Regardless of your personal beliefs, you should be able to understand what you believe in and why.
• Stay informed about current events and use trusted sources to verify information.

References:

1. Texas SB8 | 2021-2022 | 87th Legislature. LegiScan. Accessed September 20, 2021. https://legiscan.com/TX/text/SB8/id/2395961
2. Najmabadi S. Gov. Greg Abbott signs into law one of nation’s strictest abortion measures, banning procedure as early as six weeks into a pregnancy. The Texas Tribune. Published May 19, 2021. Accessed September 20, 2021. https://www.texastribune.org/2021/05/18/texas-heartbeat-bill-abortions-law/
3. Totenberg N. Supreme Court Upholds New Texas Abortion Law, For Now. NPR. https://www.npr.org/2021/09/02/1033048958/supreme-court-upholds-new-texas-abortion-law-for-now. Published September 2, 2021. Accessed September 20, 2021.
4. Diaz J. The Justice Department Wants A Federal Judge To Block Texas’ New Abortion Ban. NPR. https://www.npr.org/2021/09/15/1037224086/the-justice-department-wants-a-federal-judge-to-block-texas-new-abortion-ban. Published September 15, 2021. Accessed September 20, 2021.
5. News ABC. Mississippi abortion clinic warns Supreme Court against overturning Roe v. Wade. ABC News. Accessed September 20, 2021. https://abcnews.go.com/Politics/mississippi-abortion-clinic-warns-supreme-court-overturning-roe/story?id=79988804
6. TMA Statement: Enough Is Enough. Accessed September 20, 2021. https://www.texmed.org/TexasMedicineDetail.aspx?id=57687
7. AMA statement on Texas SB8. American Medical Association. Accessed September 20, 2021. https://www.ama-assn.org/press-center/ama-statements/ama-statement-texas-sb8
8. Johnson C, Sprunt B. Justice Department Sues Texas Over New Abortion Ban. NPR. https://www.npr.org/2021/09/09/1035467999/justice-department-sues-texas-over-new-abortion-ban. Published September 9, 2021. Accessed September 20, 2021.