If the suit fails, the new law will go into effect September 1st
Starting September 1st, the state of Texas is offering a $10,000 bounty to any private citizen willing to sue another person who, in some way, helped make an abortion possible.
The potential list of targets for such lawsuits is endless: from a pregnant person’s doctor and nurses, a therapist or pastor who offered moral support, a partner who helped pay for the procedure, a friend (even an Uber driver) who drove the patient to the clinic. Under the new law — which a group of doctors, clergy and clinic owners sued to block Tuesday — any or all of them could be taken to court by a stranger with no connection to the patient whatsoever and forced to pay a minimum of $10,000 each, plus legal fees, for “aiding or abetting” an abortion.
The law, which would apply to abortions that took place as early as two weeks after a missed period, or six weeks gestation, before many people even realize they are pregnant, is a bold esclation in anti-abortion activists’ war on reproductive rights. Since 2018, activists around the country have stepped up efforts to pass increasingly draconian restrictions on abortion, in the hopes that one of the laws will be considered by a Supreme Court majority sympathetic to their cause, who will in turn weaken — or strike down entirely — current federal protections for abortion. (The Supreme Court has previously ruled that states cannot restrict abortion before viability, or the point at which a fetus might survive outside the womb, typically between 24 and 28 weeks.)
When Gov. Greg Abbott signed SB 8 into law in June, Texas became the ninth state since 2018 to add a so-called “heartbeat bill” to the books — a law banning abortion after an embryo has begun exhibiting electrical activity in the area where the heart will later form. The first two such bans, passed in Georgia and Iowa in 2018 and 2019 respectively, were struck down, while more recent laws — in Alabama, Kentucky, Louisiana, Mississippi, Missouri, and Ohio — have been temporarily blocked by federal courts.
This time, anti-choice activists tried a new tactic with the explicit intention of avoiding the kind of lawsuits that prevented previous six-week abortion bans from going into effect. The legislative director for Texas’ largest anti-abortion group acknowledged that other bans had failed because opponents could just sue government officials to stop them. The method employed by anti-abortion activists in other states “was not working in federal court,” John Seago, legislative director for Texas Right to Life, said in May during hearings on the law, so the thinking was: “Let’s try a different route.”
The “different route” in this case is to instill fear in a pregnant woman’s doctors, faith leaders, friends, family members and acquaintances that they could be held financially responsible for her medical choice — or even just the legal fees it would take to defend themselves in court. “Abortion is legal in every state in this country,” Elisabeth Smith, chief counsel for policy and advocacy at the Center for Reproductive Rights, tells Rolling Stone. “Access to medical care is a fundamental right under the federal constitution. There will be lots of defenses available to someone who is sued. But no one wants to be dragged into a Texas courtroom and have to spend the time and the resources to find representation and to go through a civil proceeding.”
Texas lawyers are concerned about the volume of frivolous lawsuits that could result from the law. During hearings on SB 8, hundreds of lawyers signed a letter expressing concern that such lawsuits — in addition to infringing on a woman’s constitutional right to privacy — would overwhelm the court system. (They also raised questions about whether SB 8 is even legal under Texas’ constitution, which holds that filing a lawsuit is available only to a “person for an injury done [to] him,” meaning they have to have been personally impacted by the case.)
Reverend Dr. Daniel Kanter has been a senior minister at First Unitarian Church in Dallas, Texas for the past 20 years. He worries that religious leaders like himself could be targeted under the law for counseling someone who is considering terminating a pregnancy. Kanter was among a number of doctors, clinics and clergy who joined with lawyers at the Center for Reproductive Rights, the ACLU, and Planned Parenthood on Tuesday to file the lawsuit in Austin seeking to stop the ban from going into effect.
“I’ve been in so many types of conversations about abortion. Many of them have been about whether or not to have the procedure,” Kanter said on a call with reporters on Tuesday. “Some of them had been with anti-abortion advocates who needed the procedure for medical reasons. I’ve talked with families who decided to have abortions and many who have decided not to have abortions. When they leave my office, they make their own decisions with my support and with my love. The thing to realize here is that the consequences of this law not only leave us with thousands of undesired, difficult pregnancies, it also leaves us with few options about what we can do to support decision making.”
Texas’ new law, he said, “is the first real attempt by the state to interfere with my ability to be fully present to all the people who need a private conversation with a faith leader.”
Whole Woman’s Health and Whole Woman’s Health Alliance, a clinic in Texas, is another plaintiff in the suit filed on Tuesday. “Our staff teams and our physicians are terrified. The teams are on edge. They’re very worried,” CEO Amy Hagstrom Miller told reporters. “The ultrasonographer that I spent yesterday with was telling me that already 80 percent of the patients she’s been serving in the last month have been asking while they’re in the clinic on the day of their abortion if it’s legal. Can you imagine what that feels like as a patient and as a staff person on the ground in Texas? I am furious.”
Whole Woman’s Health was the plaintiff in the Supreme Court’s last landmark decision on abortion; in 2016, the court ruled that anti-abortion activists’ attempts to bury doctors and clinics in medically unnecessary regulations constituted an undue burden on women seeking abortions. “Yet again we have to go back into the courts to plead with them to protect the people of Texas from extremists who hijacked the state legislature,” said Hagstrom Miller on Tuesday.
With the heartbeat bills passed in other states, abortion advocates would sue the governor and the attorney general to stop them. In this case, because of the law’s tactic of deputizing private citizens for enforcement, the suit filed Tuesday had to include a broad spectrum of defendants. The suit was filed against all non-federal judges in the state of Texas with jurisdiction over civil actions and the authority to enforce S.B. 8, as well as every county clerk with jurisdiction over civil suits, and the executive directors of the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, the executive commissioner of the Texas Health and Human Services Commission, and Ken Paxton, the attorney general of Texas.
“This is a new strategy that Texas has tried here,” Marc Hearron, lead attorney on the case and senior counsel at the Center for Reproductive Rights, said on Tuesday. “But there is precedent for bringing civil rights claims against judges. For example, the Supreme Court has held that the federal civil rights laws are available to vindicate anyone’s constitutional rights, whether that means that it has to be a lawsuit brought against executive branch officials or judges.”
It remains to be seen whether the lawsuit will successfully block the law from going into effect as scheduled in September. “Everyone knows it’s unconstitutional,” Smith says. “The Texas legislature knows that, Governor Abbott knows that we know it, people who are hostile to abortion rights know it. But what the state of Texas is trying to do is escape review of their unconstitutional law by, basically, trying to force abortion rights proponents into this conversation about procedure and not about the content of the law itself.”
There are signals, already visible in the special session of the Texas legislature convened last week, that even the hard-right Texas legislature may not expect SB 8 to actually go into effect.
“One of the bills the legislature is going to consider is a bill that would limit the provision of medication abortion down from the FDA limit of 70 days to 49 days gestation,” Smith says. In other words: “The legislature just passed a law to limit abortion to less than six weeks, yet is convening to discuss further limitations on medication abortion…. I think the only way that the legislature would come together to look at further limiting abortion is because they all understand, at the end of the day, [SB 8] is unconstitutional, and lawsuits under it will very likely be unsuccessful.