EXPLAINER: Texas law gives limited window for abortions

Gov. Greg Abbott in defending Texas near-ban on abortions, says women and girls who are raped won't be forced to give birth because the new law "provides at least six weeks for a person to be able to get an abortion.”

But that's not how pregnancy works.

The Texas law — which the U.S. Supreme Court allowed to take effect Sept. 1 — bans abortions once medical professionals can detect cardiac activity, which is usually around six weeks into a pregnancy. However, six weeks into a pregnancy does not mean a woman has six weeks to make a decision.

Here's a look at the new Texas law viewed as the biggest affront to the constitutional right to an abortion in decades:

WHEN WOULD SOMEONE KNOW SHE'S PREGNANT?

A positive pregnancy test does not mark Day 1 of a pregnancy. Instead, gestational age is measured by the first day of a woman or girl's last period. A typical menstrual cycle is 28 days, although many people have irregular cycles that are longer or shorter than that. Ovulation — when an egg is released from an ovary and conception is most likely — occurs around the midpoint of the cycle.

Typically, women don’t test for pregnancy until after they’ve missed a period. Those with irregular cycles or unplanned pregnancies may not learn of the pregnancy until after the six-week mark.

Extra-sensitive pregnancy tests can sometimes detect a pregnancy about five or six days before a missed period. That means someone who has regular periods and is carefully tracking her cycle could know of a positive result no earlier than about four weeks into a pregnancy. That would give her two weeks or less to get an abortion in Texas.

“This law does not give you six weeks after you have discovered you are pregnant,” said Amy Jones, the chief executive officer of the Dallas Area Rape Crisis Center.

Jones said she was “confused by (Abbott's) statements and disheartened.”

“Confusing information about this law really sets a survivor up … to have a misunderstanding of what to expect should they need to seek out services to terminate a pregnancy, and I think that can be shocking and perhaps retraumatizing,” she said.

HOW MANY WOMEN AND GIRLS COULD BE AFFECTED BY THIS LAW?

The Texas Health and Human Services Commission says about 15% of the about 55,000 abortion procedures performed in Texas in 2020 were at less than six weeks gestational age. That's about 8,000 abortions.

The state's numbers are in line with the assertion from abortion providers that the law would bar at least 85% of abortions in Texas. In 2020, that would have been about 47,000 abortions.

Abbott, a Republican made his comments Tuesday at a press conference when asked whether the new law would force someone who was raped to carry the pregnancy to term since it does not require exceptions for rape or incest. He replied: “It doesn’t require that at all, because obviously it provides at least six weeks for a person to be able to get an abortion.”

Abigail Aiken, an associate professor at the University of Texas at Austin who studies reproductive health, explains that someone may not realize their period is late for a few days or even a week "and that brings you up to about five weeks already.”

“And then after that … you might need some time to make a decision about what you want to do about that pregnancy, and then you have to navigate the obstacle course that Texas law has already put in place when it comes to accessing in-clinic abortion in this state,” Aiken said.

State law requires people seeking an abortion to make at least two visits to an abortion clinic, waiting at least 24 hours to return after the initial visit. Other requirements include ultrasounds and counseling materials.

During the press conference, Abbott also pledged to “eliminate all rapists from the streets.” Abbott's office did not respond to subsequent requests for comment.

WHAT ARE THE DETAILS OF THE TEXAS LAW?

The law allows any private citizen to sue Texas abortion providers who violate the law, as well as anyone who “aids or abets” a woman or girl getting the procedure. Abortion patients themselves, however, cannot be sued.

The person who sues does not have to have a connection to the person getting an abortion. And the person who brings the lawsuit is entitled to at least $10,000 in damages if they prevail in court. Texas Right to Life, the state’s largest anti-abortion group, launched a website to receive tips about suspected violations and says it has attorneys ready to bring lawsuits. However, the website remained down Thursday, days after host GoDaddy kicked it off, saying it violated the company’s terms of service.

A spokeswoman for Texas Right to Life noted the website is mostly symbolic since anyone can report a violation and because abortion clinics appear to be complying with the law.

WHAT HAPPENS NEXT?

A case is still proceeding in the 5th U.S. Circuit Court of Appeals, though the timing of future action is unclear.

The Supreme Court declined to block the law from taking effect while that case makes its way through the legal system. In its 5-4 ruling, the court emphasized that it was not addressing the constitutionality of the law — only that those seeking an emergency stay had not met the high burden to block it.

On Thursday, the Justice Department sued Texas over the law, arguing that it was enacted “in open defiance of the Constitution.” The lawsuit asks a federal judge to declare that the law is invalid.

___

Bleed reported from Little Rock, Arkansas.