The measure – enacted by Republican Gov. Greg Abbott in May and due to take effect Wednesday – prohibits abortion providers from performing abortions once a fetal heartbeat is detected. Opponents of the law say at least 85 percent of requested abortions in the state are banned, as that point is about six weeks after pregnancy begins, before some women know they are pregnant.
But among these restrictions, the Texas bill stands out for the innovative approach it takes to reduce the process.
Rather than imposing a criminal or regulatory sanction on those who perform abortions after the stage of pregnancy, state law has created a so-called “private right of action” to enforce the restriction. Essentially, the legislature delegated private citizens to bring a civil action – with the threat of $ 10,000 or more in damages – against providers or even anyone who helped a woman access an abortion after six weeks.
“The way the bill is structured encourages lawsuits that will harass abortion providers and those who support abortion in Texas,” Adriana Piñon, an attorney with the Texas branch of the ACLU, told CNN.
The approach was to isolate the law from the kind of federal court challenges that would prevent it from coming into force. Such a lawsuit – brought by several clinics represented by the ACLU and other groups – is now mired in a complicated procedural dispute that has prompted the clinics to seek Supreme Court intervention.
The result is that while the legal battle unfolds, suppliers in Texas may have to decide whether they want to risk costly litigation brought by private plaintiffs seeking damages under state law.
Anti-abortion activists are already preparing to sue if clinics violate the six-week ban.
“This whole mechanism only works if there is a credible threat of legal action against an industry if it chooses to ignore the law,” said John Seago, chief executive of Texas Right to Life, who has advocated for the law. ban on abortion. “So we worked to make sure that all of these pieces are in place, that if we have reports, that we see evidence that they are breaking the law, then we can actually enforce the law ourselves.”
Seago told CNN the push for the law was prompted by a letter released in October by a coalition of state and local prosecutors across the country who have vowed not to enforce anti-abortion laws, even though Roe deer was knocked down.
“One of the great benefits, and one of the most exciting things about the pro-life movement, is that they have a role to play in enforcing this law,” Seago said.
Impact on clinics
Clinics will need to hire lawyers to defend themselves, and if these civil suits are successful, state courts can shut down clinics. The measure also includes a provision that will prevent clinics, even if they win in court, from recovering their attorneys’ fees from their legal opponents.
“The kind of people who are going to bring these lawsuits are the people my staff see every day,” said Amy Hagstrom Miller, president of Whole Woman’s Health, which operates four clinics in Texas and is suing in federal court to block the law. . . “They yell at them on their way to work, they know their names, they know what car they’re driving, so it’s not abstract for our clinic staff and our doctors.”
Texas Right to Life is considering launching a hotline for people to report evidence the ban has been violated and Seago, the legislative director, also said he expected “sidewalk advisers,” in her words, and counselors at the pregnancy centers could also be involved in the lawsuits.
In addition, the law exposes anyone who “knowingly … aids or encourages” to perform an abortion after the heartbeat is defective to civil damages, even if it excludes the woman who has had the abortion from liability. .
The language is vague but has raised concerns that family members who push patients to have abortions or donors to abortion funds that help pay for the procedure are vulnerable to civil lawsuits.
Will the law stand up to legal challenges?
Seago explained how the structure of the law – and how it allows citizens to bring civil suits – will make it more resistant to the type of “back and forth” in federal courts that have blocked abortion restrictions. in the past.
Typically, when a state enacts an abortion restriction, abortion rights advocates take legal action against government officials – such as attorneys general or regulatory boards – charged with enforcing a sanction. criminal or administrative law and seek court orders preventing such officials from enforcing those laws before the restrictions come into effect.
By leaving the application of the ban in the hands of private civil litigants, the champions of the Texan measure hope to deprive their legal opponents of the possibility of obtaining a federal court to block the measure before it comes into effect. force.
At the same time, however, let Texas go ahead with this final round. Roe deer nonetheless opens up the possibility for Blue Cities and States to adopt the strategy of their political preferences, such as the adoption of gun control restrictions enforced by private plaintiffs.
Either way, if Texas is allowed to enforce the law, it seems likely that other Red States would follow suit using the approach to restrict abortion.
“We have already heard from states working on drafting legislation that takes this enforcement mechanism approach,” Seago added.