May 27, 2021
The Implications of Texas’s Newest Abortion Laws
And how this legislation reaches far beyond women who have abortions
Texas’s Governor Greg Abbott just signed Senate Bill 8, the “Texas Heartbeat Act”, into law. It amounts to a full abortion ban for the state unless the woman’s life is at risk and does not include exceptions for rape or incest — but it does allow anyone, even if they have no connection to the woman seeking or having an abortion, to sue abortion providers or anyone else involved in “aiding and abetting” or who “intends” to help a woman obtain an abortion.
This law is just the latest in a long line of “heartbeat” bills that are intended to pander to the single-issue voters and “pro-life” conservatives that make up the GOP’s base. None of these laws have actually been implemented due to court challenges (and their obvious violation of Roe v. Wade), but the potential damage they could effect is truly frightening. And now that we have a six to three conservative majority on the Supreme Court, the issue has become increasingly more pressing.
I’ve written about abortion before (here and here), but given that conservatives are so intent on reversing Roe v. Wade, I felt like it was worth exploring the dangers of this particular law as it relates to the future of women’s healthcare.
Although these bills, which ban abortion at six weeks, focus on the popular notion that a “fetal heartbeat” can be detected at that point, scientifically and medically speaking that’s not entirely accurate.
First off, an embryo does not become a fetus until 10 weeks of pregnancy. As with much of the anti-abortion legislation that comes from the right, the terminology they use is purposefully targeted and intended to humanize the group of cells that might potentially develop into a baby at the end of 40 weeks.
While electrical activity can be seen (but not heard) on an ultrasound at six weeks, the current evidence shows that it is not actually a heartbeat, but electrical communication between groups of cells that will eventually become the heart.
At this stage, the embryo consists of a “4mm thickening next to a yolk sac”. This ultrasound image is of a fetal pole at six weeks and one day of pregnancy.
An actual image of an embryo at the same stage can be found here for those interested. (Hint: it is not baby-shaped with a face, arms, and legs like anti-abortion advocates like to misrepresent in their campaigns.)
The second issue with six week abortion bans is that women’s cycles vary greatly in terms of length and when ovulation occurs. Normal cycle lengths range from 21 to 40 days with ovulation occurring 10 to 16 days before the beginning of the next period, but pregnancy gestational age is based on a cycle length of 28 days with ovulation occurring at 14.6 days after the last menstrual period.
In the earliest weeks of pregnancy, that can have a huge impact on what stage an embryo might be at and what development is occurring then. The various stages of development that might be observed at that point can be seen here:
https://utswmed.org/medblog/patience-key-understanding-timing-early-ultrasounds/
In practice, this means that a woman who has a 21-day cycle could be a week further along in her pregnancy than gestational age would suggest, while a woman with a 40-day cycle could be almost two weeks behind the expected level of development according to the date of her last menstrual period.
All of this, of course, is also assuming that a woman knows and can accurately report the date of her last menstrual period (LMP).
A literature review compiled by ClearBlue (the makers of pregnancy and ovulation tests) found that aside from the aforementioned discrepancies in actual cycle length and ovulation dates, as many as 15–40% of women could not recall the date of their LMP.
For those who did report a date, specific number preference (for days 1, 5, 10, 15, 20, 25, and 28) was evident, with the 15th occurring 2.5 times more often than would be expected by chance on over half a million birth records.
“This preference for certain numbers indicates that some women appear to
estimate LMP by rounding to the nearest 5. This observation was confirmed by Savitz, who found that, in total, a 55% excess assigned to preferred dates. This suggests that more than half of women are just estimating LMP rather than using accurate recall or recording techniques.”
Not only does the female reproductive cycle not perform predictably in reality according to a predetermined average; women — especially those not actively trying to get pregnant — also generally do not keep close track of their cycle dates. Menstrual cycles can also be affected by various health conditions (like PCOS — polycystic ovarian syndrome), stress, changes in body fat composition, rigorous physical activity, medication, sleep, and time zone travel, among other things.
Therefore, it’s ridiculous to expect the six week mark of gestational age to be a universal determinant of life and future viability, much less to be used as a legal cutoff for abortion.
The other major points of contention in this bill are its failure to include exemptions for rape/incest and its inclusion of the ability to file civil suits against anyone involved in helping a woman seeking an abortion.
The majority of Americans — 79%, according to the latest Gallup poll done on the subject — support the legality of abortion in all or certain circumstances. The largest group out of that percentage, 50%, say it should be legal only under certain circumstances.
The issue is, unsurprisingly, split along party lines, with 68% of Republicans identifying as pro-life (46% of all Americans) and 72% of Democrats identifying as pro-choice (48% of all Americans). A slight majority of moderates, 55%, favor the pro-choice position, while Independents are evenly split on the issue with 47% in either camp.
Despite the overall division in opinions on topic as a whole, however, the majority of Americans still support abortion in certain circumstances. The same Gallup poll showed that 79% believe in allowing abortions when the woman’s life is endangered, and roughly 65% in situations of rape or incest.
Those opinions, broken down between the first and third trimesters, can be seen on this chart:
Because the newest Texas law only includes exemptions for medical emergencies after six weeks, it goes against the opinion of the 77% of Americans who believe abortion should be allowed in cases of rape and incest.
Instead, those women will be forced to go out of state to obtain abortion services as of September of this year.
The number of abortion facilities in Texas declined 25% between 2014 and 2017, from 44 to 35. That year, 96% of Texas counties had no access to abortion care, with 43% of Texas women living in those counties. By 2019, the number of clinics had dropped to just 22.
Most of the clinics that are still open are located in major cities, so women living in smaller towns and rural areas are already forced to drive long distances to access abortion care.
In West Texas and the Panhandle, the nearest clinics are over 250 miles away, in the DFW Metroplex on the eastern side and El Paso on the west — San Angelo’s Planned Parenthood served the area until they closed in 2013, and while one recently reopened in Lubbock, the city just voted in favor of an ordinance to ban abortions there.
While none of these bans are likely to stand in court — others like them have been ruled unconstitutional — they are equal parts performance and hinderance.
TRAP (Targeted Restrictions on Abortion Providers) laws have long been a strategy for circumventing the constitutionality of laws that directly counter Roe v. Wade, making it more difficult and financially prohibitive for abortion clinics to stay open. These involve placing unnecessary requirements, such as hallway width and hospital admitting privileges, on abortion providers that have no bearing on patient safety but present very real obstacles in their ability to provide care.
For example, abortion is an incredibly safe medical procedure, so complications — especially those requiring attention at a hospital — are exceedingly rare, making it impossible for doctors to meet the patient admitting minimums required by most hospitals for privileges.
Similarly, the building specifications required by these laws are arbitrary at best. They’re established under the same guise of patient safety — making clinics meet the same requirements as outpatient surgical facilities — but in reality, they mean costly renovations or relocations for clinics to meet them. Since most abortion clinics are operating on minimal budgets, they simply cannot afford to make those changes and are forced to close instead.
The legal battles over anti-abortion legislation have the same effect — even though they rarely stand the test of law, the cost of lengthy law suits can be too much for many providers to withstand.
On the other hand, these kinds of statutes and restrictions have tremendous value in the court of public opinion for pro-life advocates, who see them as a win for their cause and a step toward reversing Roe.
It has long been my opinion that while the motives of pro-life voters are typically genuine, those of the politicians they elect are not. I believe that they see these legislative victories as bones to throw their constituents, 30% of whom are single-issue voters on the subject of abortion, to maintain their support.
If they were truly successful in having Roe v. Wade overturned, they would risk losing that reliable voting bloc and having to find a new hinge issue to run on — something that the so-called Moral Majority tried to do unsuccessfully for years before settling on abortion in 1980 with the Reagan campaign.
The recent Texas abortion law also includes the novel addition of anyone — even those not directly connected to the woman or pregnancy in question, such as other family members, clergy, etc. — being able to file a lawsuit against abortion providers and anyone else involved in aiding a woman in obtaining an abortion.
Also included in this bill is the establishment of a minimum award of $10,000 on top of court costs for such lawsuits, although those on the receiving end of the suits, even those accused unjustly, cannot recoup legal fees.
Opponents to the law have pointed out that the language is so broad that even those who are remotely involved in the situation — such as the rape crisis counselor that gave a referral, the person who drives the woman to her appointment, friends or family that lend money for the procedure, or even someone that provides information on the clinic or address of where it’s located — can be sued under these provisions.
This would not be the first time an anti-abortion law had presumably unintended consequences — in 2018, a woman who had a miscarriage while on vacation and was prescribed misoprostol to complete it at home was denied the medication by a pharmacist who cited his moral opposition because he thought she was trying to use it to end her pregnancy.
She was able to have it filled six hours later in her hometown, but there are some obvious problems with her situation. First, these medications have to be taken within a certain time frame to work most effectively. A missed or incomplete miscarriage can lead to infection or the necessity of a D&C, which is an outpatient surgical procedure virtually identical to an abortion and is much more expensive for the patient.
Secondly, the pharmacist’s decision hinged on his belief that she was going to use the medication to have an abortion instead of treating a miscarriage. As such, he berated her and refused to allow her to speak to a supervisor or have another pharmacist fill it, or even transfer her prescription to another pharmacy. No woman who is going through the physical and emotional turmoil of having a miscarriage should have to deal with these kinds of obstacles.
All of these laws are a short step away from criminalizing abortions — and by extension, miscarriages as well. Planned Parenthood cites five cases in Arkansas alone — including two in 2015 and 2016 — in which women have been arrested after having a miscarriage or stillbirth.
An article by author and columnist Jessica Valenti details eight cases in which women who had miscarriages or abortions at home were charged (and in some cases, convicted) due to laws written with broad language that prioritize the rights of the fetus over that of the woman.
These only represent a handful of such cases that have happened across the country, the bulk of which have disproportionately affected women of color, immigrants, and other women who do not have the financial resources to fight costly legal battles.
For a party that has constantly railed about “individual liberties” and “First Amendment rights” (even and especially when they don’t actually apply), the passage of these measures is an egregious violation of our freedoms to believe and exercise those beliefs as we wish, aside from their implications for women’s health and rights.
Given that the men involved in the creation of pregnancies are noticeably absent from all of this abortion legislation, it’s not difficult to surmise that conservative lawmakers aren’t all that interested in the constitutional freedoms of anyone who is not a white male — or, of course, a fetus that has the potential to become a white male or provide children for them. We are forever marching closer to a reality that has frightening parallels to The Handmaid’s Tale.
