Texas' next big abortion fight is here, coming in the form of Houston-area state Rep. Briscoe Cain's fetal-heartbeat bill. If it passes, it will ban any abortion performed more than six weeks after fetal conception. That's the written part of the bill. The unwritten part, the part that will fill in the gaps created by years of anti-choice legislation in Texas, is that Cain's legislation would effectively ban abortion in the state. Fifty-seven of the 150 members of the Texas House have signed on as authors, co-authors or sponsors of Cain's legislation. (Cain is the guy who mocked Stephen Hawking the day he died, if you need a point of reference.)
Stephen Hawking now knows the truth about how the universe was actually made.— Briscoe Cain (@BriscoeCain) March 14, 2018
My condolences to his family.
"The heartbeat is a universally recognized indicator of life," Cain said when he announced the bill earlier this month. "The Texas Heartbeat Bill recognizes that this universal indicator should also apply to our most innocent and vulnerable Texans."
The representative is employing a rhetorical trick here, of course. A fetus six weeks after conception is nothing like a "Texan." It's not viable, can't feel pain and is about the size of a pea. Its heartbeat can be seen only via a transvaginal ultrasound, not heard with a stethoscope. No six-week abortion ban has ever held up in court, either. Every time a state has passed such a law, a judge has ruled it unconstitutional and stopped it from going into effect.
In their rulings, the judges who have struck down previous "heartbeat bills" have cited the standard created by the Supreme Court's 1992 decision Planned Parenthood v. Casey. Casey holds that states have an interest in regulating abortion, but they cannot create an "undue burden" on women seeking the procedure. The "undue burden" standard guided the Supreme Court's decision in Whole Woman's Health v. Hellerstedt, the 2016 case that saw the high court overturn a Texas law that required doctors performing abortions to have admitting privileges at a hospital within 30 miles of the clinic at which they were performing the procedure and for abortion clinics themselves to be outfitted to the same standards as hospital surgical suites.
Despite the Texas law's being struck down, it still forced dozens of clinics in the state to shut down during the various times it was enforced as the suit against it wound its way through the courts. Fewer clinics means longer waits for appointments. Combine longer wait times with basic human anatomy, and Cain's bill would make it basically impossible to get an abortion in Texas.
"A six-week ban is an abortion ban because most women don't know they're pregnant at six weeks," says Kelly Hart, the senior director of public affairs at Planned Parenthood of Greater Texas. "You miss your period, that's usually your first sign. Then how long do you wait before you get a test, because maybe you hope you're late for some reason? Maybe you give it a few days or whatever. You take the test, it comes back positive. You go to your doctor, maybe, to have it confirmed. There's a process."
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Even if a woman makes an appointment the day she realizes she might be pregnant and sees a doctor as soon as possible, she might not meet the law's requirements.
"If this law was in place and you immediately pick up the phone to call one of us, it's a matter of when we can fit you in. Then you have to come in for your [state-mandated] sonogram. It's rarely a two-day wait. It's usually more because of scheduling and all that. This is just another way to do an abortion ban," Hart says.
Cain's House Bill 1500 has not yet been assigned to a House Committee, the next step it needs to take toward becoming law. If it were to pass the Legislature, it would be subject to an inevitable, lengthy court challenge.
Correction Feb. 26: This story initially stated that no six-week-old fetus has ever enjoyed legal protection in Texas. While that's true with regard to abortion, it isn't true with regard to Texas criminal law. We've updated the third paragraph of this story to reflect this fact.