A Texas state law that prohibits abortion after six weeks of pregnancy could serve as a model for red states to enact stringent abortion restrictions without having to wait for the Supreme Court to reconsider Roe v. Wade.
The bill, signed into law in May by Republican Gov. Greg Abbott, prohibits abortion providers from performing abortions once a fetal heartbeat is detected. According to opponents of the law, it would effectively outlaw at least 85 percent of abortions sought in the state, because that point is around six weeks into the pregnancy, before some women realize they’re pregnant. The law went into effect early Wednesday morning after the Supreme Court and a federal appeals court declined to hear challenges to it.
It was enacted as part of a slew of restrictions approved by Republican legislatures across the country this year, following the confirmation of Justice Amy Coney Barrett, who shifted the Supreme Court further to the right and increased the likelihood that the court will scale back or repeal Roe v. Wade, the landmark 1973 decision that enshrined a constitutional right to an abortion before the fetus is viable.
Among these restrictions, the Texas bill stands out for its novel approach to limiting the procedure.
Rather than imposing a criminal or regulatory penalty on those who perform abortions after a certain point in the pregnancy, the state law established a so-called “private right of action” to enforce the restriction. Essentially, the legislature empowered private citizens to file civil lawsuits against providers or anyone who assisted a woman in obtaining an abortion after six weeks, with the threat of $10,000 or more in damages.
The strategy was designed to protect the law from federal legal challenges that would prevent it from going into effect. One such lawsuit, brought by several clinics represented by the ACLU and other groups, is now mired in a complicated procedural dispute, prompting the clinics to seek Supreme Court intervention, which had not been granted as of 1:30 a.m. ET Wednesday.
As a result, while the legal battle plays out, Texas providers 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 moratorium. Though previous anti-abortion proposals included civil liabilities, the Texas ban is unique in that it is built entirely around that threat. The way it broadens who can sue under the measure – “any person” other than a government official, according to the text – is also novel in the context of abortion, he said.
The clinics will have to hire lawyers to defend themselves, and if the civil lawsuits are successful, state courts have the authority to shut down the clinics. The bill also includes a provision that prevents clinics from recouping their legal fees from their opponents, even if they win in court.
Texas Right to Life is planning to launch a tip line for people to report evidence that the ban has been violated, and Seago, the legislative director, has stated that he expects “sidewalk counselors” and pregnancy center counselors to be involved in the lawsuits as well.
The language is vague, but it has raised concerns that family members who drive patients to abortion clinics or donors to abortion funds who help pay for the procedure will face civil litigation. Seago emphasized how the law’s structure – and how it empowers citizens to bring civil litigation – will make it more resistant to the type of “back and forth” in federal courts that has previously blocked abortion restrictions.
Typically, when a state passes an abortion restriction, abortion rights advocates file lawsuits against government officials in charge of enforcing a criminal or administrative punishment, such as attorneys general or regulatory boards, and ask courts for orders prohibiting those officials from enforcing those laws before the restrictions go into effect. Regardless, if Texas is allowed to permanently implement the law, it appears likely that other red states would follow in using the approach to restrict abortion.