Confusion, Misinformation Surround Texas Abortion Law

The law is headed for the courts after a San Antonio OB-GYN was sued for performing an abortion in violation of the law.

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Misinformation about the early stages of pregnancy surrounded Texas law Senate Bill 8 (SB 8), which went into effect on Sept. 1, 2021. The law effectively banned most abortions in the state by deputizing private citizens to file lawsuits against health care providers and anyone who “aids or abets” an abortion after the pregnancy is about six weeks along.

Those who successfully sue can collect $10,000 from the defendant. On Sept. 20, 2021, a San Antonio OB-GYN was sued for providing an abortion that violated the law and penning an Op-Ed essay in The Washington Post about it. Both the doctor, Alan Braid, and the man who sued him, Oscar Stilley, stated that their intent was to test the constitutionality of the Texas law in the courts.

We will look at some of the misinformation that has surrounded the law here.

Gov. Greg Abbott: Law Provides ‘At Least 6 Weeks’ To Get Abortion?

On Sept. 7, 2021, Texas Gov. Greg Abbott made a statement that sparked backlash. A week after signing into law the near-total ban on all abortions, Abbott responded to a reporter’s question asking why state law forces victims of rape and incest to carry pregnancies to term.

“Obviously, it provides at least six weeks for a person to be able to get an abortion, and so, for one, it doesn’t provide that,” Abbott responded, in part. Here’s video of that response:

But it’s not true that the law provides six weeks for patients to seek and access an abortion.

As NPR reported, the Texas law renders all abortions illegal after fetal cardiac activity is detected (which is at roughly 6 weeks). That leaves an extremely narrow window, if any at all, to get an abortion after a person learns she’s pregnant. “In fact, the countdown for those six weeks starts from the first day of a person’s last period (not the ‘expected’ period that was missed), leaving many with only about one or two weeks to end the pregnancy, if that, under the new law.”

Anti-Abortion Group’s Tweet Shows 7-Week-Old Embryo?

On Aug. 31, 2021, the anti-abortion activist group Live Action posted an image supposedly of an embryo, along with text supporting SB 8:

By one measure, the image in the tweet does show a fetus at about the 7-week stage of development. But SB 8 actually applies to pregnancies starting at an earlier stage of development.

A spokesperson for Live Action acknowledged this discrepancy in an emailed statement to Snopes, which read, in part:

“The picture in our tweet shows a child at 7 weeks from fertilization, 9 weeks LMP – who is well past the point when the heartbeat can be detected and is protected by the Texas law, as the tweet says.”

Live Action’s statement acknowledges that the medical and science community uses a different method of dating pregnancy than anti-abortion activists do, even if its tweet failed to mention that.

Dr. Daniel Grossman, professor of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco, explained in a phone interview that the medical community dates pregnancies starting from the first day of the last menstrual period (LMP).

The anti-abortion movement often dates pregnancies from the moment of egg fertilization, which creates a roughly two-week time lag between when the medical community counts the start of pregnancy and when anti-abortion activists do.

Consequentially, the embryo pictured in Live Action’s tweet may be about 7 weeks old from the point of fertilization, but the Texas law applies to pregnancies that, using that metric, are far less developed. Here is an illustration of that stage of development, provided by the Mayo Clinic:

Using the dating system that the medical community uses, which is dating pregnancies from the last menstrual period, Grossman said the embryo in Live Action’s image appears to be about 9 to 10 weeks old.

“One of the motivations behind their desire to use the dating system that counts weeks from fertilization may be to imply that the fetus is more fully developed at an earlier time period,” Grossman told us. “It sows confusion. It makes people think the embryo or fetus is more developed at a given number of weeks of pregnancy than it really is.”

‘Heartbeat Bill’?

SB 8 has been dubbed the “Heartbeat Bill,” and the legislation is crafted around blocking abortion as soon as “cardiac activity” can be detected. But cardiac activity at that stage of pregnancy isn’t an actual “heartbeat,” Grossman said.

“It’s not a heartbeat because it’s not a fully formed heart,” he told us. “You can’t actually hear it without the use of Doppler technology.”

In an interview with the Texas Tribune, Dr. Nisha Verma, OB-GYN and fellow at the American College of Obstetricians and Gynecologists, stated:

“Flickering that we see on the ultrasound, that’s super early in the development of a pregnancy, is actually electric activity. And the sound that we hear at that point is actually manufactured by the ultrasound machine.”

Verma added that the sound created by a heartbeat is caused by the opening and closing of cardiac valves. Those valves at that stage of gestation don’t yet exist. 

The Big Picture

As we mentioned above, on Sept. 20, 2021, Braid, the San Antonio OB-GYN, was sued for providing an abortion and writing an opinion essay for The Washington Post about it, which was published on Sept. 18. 

“I fully understood that there could be legal consequences — but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested,” Braid wrote in the essay.

Oscar Stilley, the man suing Braid, stated that he also wanted the law tested in the courts.

“If the law is no good, why should we have to go through a long, drawn-out process to find out if it’s garbage,” Stilley told The Washington Post.

In the meantime, SB 8 makes it nearly impossible for women to get an abortion in the state, said Stephanie Toti, senior counsel and project director for The Lawyering Project, a legal advocacy organization that seeks to improve abortion access.

Toti told us in a phone interview that only about 10% of patients seeking abortions in Texas will be able to get one before the six-week cutoff, in part because it’s layered on top of laws Texas already had on the books that made abortion access more difficult.

For example, Texas has a mandated 24-hour waiting period for all abortions, which means those seeking abortions must schedule two consecutive appointments — an initial appointment, followed by an appointment for the abortion procedure.

For people with certain types of jobs, that can be difficult and may significantly delay an abortion. Toti said that 75% of patients seeking abortions are low-income workers who often have little control over their work schedules.

“It is often impossible for patients to take consecutive days off or two days off in the same week,” Toti said. “That 24-hour period can delay people by a week.”

Additionally, Toti said that patients seeking abortions who live within 100 miles of a clinic must make two separate office visits for the two abortion-related appointments. Those who live more than 100 miles away can make a virtual appointment, but that may still be challenging if they need a secure, private place for that appointment and don’t have access to one.

Another law that can make getting an abortion within the allowed timeframe difficult is one in which Texas requires minors to get parental consent. Adolescents and teens can bypass this law by getting a judge to allow their abortion.

“For minors with an abusive parent, this can add weeks,” Toti said. “So it’s basically impossible.”


Sources:

“EXPLAINER: What to Know about the New Texas Abortion Law.” Associated Press, 2 Sept. 2021, https://apnews.com/article/health-texas-us-supreme-court-laws-gun-politics-15b5ade8ad341cd7f9e61da10a994c43.

“Gestational Age Bans: Harmful at Any Stage of Pregnancy.” Guttmacher Institute, 8 Jan. 2020, https://www.guttmacher.org/gpr/2020/01/gestational-age-bans-harmful-any-stage-pregnancy.

Irvine, Bethany. “Why ‘Heartbeat Bill’ Is a Misleading Name for Texas’ near-Total Abortion Ban.” The Texas Tribune, 2 Sept. 2021, https://www.texastribune.org/2021/09/02/texas-abortion-heartbeat-bill/.

Lopez, Ashley. “Judges In Texas Are Inconsistent About Allowing Minors To Get Abortions Without Parental Consent.” Houston Public Media, 17 Jan. 2020, https://www.houstonpublicmedia.org/articles/news/health-science/2020/01/17/357807/judges-in-texas-are-inconsistent-about-allowing-minors-to-get-abortions-without-parental-consent/.

Braid, Alan. “Opinion | Why I Violated Texas’s Extreme Abortion Ban.” Washington Post, 18 Sept. 2021, https://www.washingtonpost.com/opinions/2021/09/18/texas-abortion-provider-alan-braid/.

Marimow, Ann E. “Texas Doctor Who Violated State’s Abortion Ban Is Sued, Launching Test of Constitutionality.” Washington Post, 20 September 2021, www.washingtonpost.com, https://www.washingtonpost.com/politics/courts_law/texas-abortion-doctor-sued/2021/09/20/f5ab5c56-1a1c-11ec-bcb8-0cb135811007_story.html.

Treisman, Rachel. “Fact Check: Texas Gov. Greg Abbott’s Misleading Remarks On The State’s Abortion Law.” NPR, 8 Sept. 2021, https://www.npr.org/2021/09/08/1035119369/fact-check-texas-gov-greg-abbotts-misleading-remarks-on-the-states-abortion-law.