20 Jul 2021 Pro-Choice Advocates Challenge Extreme Texas Abortion Ban

A coalition of women’s health organizations and advocates is challenging the onerous new Texas abortion ban, due to take effect in September, by suing the judges, county clerks and professional licensing organizations that would be responsible for enforcing it.

The group’s legal strategy is an unusual one, made necessary by what appears to be a legislative end-run aimed at preventing pro-choice advocates from suing state officials in federal court to stay the law. As explained in the American Bar Association’s ABA Journal:

“…abortion rights advocates have successfully challenged six-week abortion bans by suing government officials who were responsible for enforcing the laws. However, no state official is authorized to enforce the Texas law, a provision that seems intended to prevent abortion providers from suing the state in federal court to block enforcement.

“In this case, the plaintiffs have instead filed a lawsuit against individuals who could be involved in the enforcement process, such as every state court trial judge and county clerk and leaders of the Texas Medical Board and Texas Board of Nursing.”

Texas Heartbeat Bill Puts $10,000 Bounty on Abortion Providers

Similar to other so-called “heartbeat bills” that have been enacted in several states, the new Texas law prohibits all abortions after a fetal heartbeat can be detected, typically at around six weeks, and often before a woman knows she is pregnant. Unlike other state bans, the Texas law does not make exceptions for rape or incest, although there is an exception for medical emergency.

But the Texas law contains a diabolical new twist, designed to thwart challenges in federal court: Rather than making the state responsible for enforcement, this law would essentially put a bounty on anyone involved in an abortion in violation of the law.

The law would allow anyone—not just in Texas, but anywhere—to sue, not only the physician or clinic that perform the procedure, but anyone who counsels or refers the patient, provides funding for care or otherwise aids the patient in obtaining an abortion. The woman having the abortion cannot be sued. To sweeten the deal, plaintiffs would receive a $10,000 reward from the state for every successful lawsuit.

It’s easy to imagine the result: As the coalition wrote in its complaint, filed July 13 in the U.S. District Court for the Western District of Texas, “If not blocked, S.B. 8 will force abortion providers and others who are sued to spend massive amounts of time and money to defend themselves in lawsuits across the state in which the deck is heavily stacked against them. Even if abortion providers and others sued in S.B. 8 lawsuits ultimately prevail in them—as they should in every case if only they could mount a fair defense—the lawsuits against them will still have accomplished S.B. 8’s goal of harassment.”

The law’s civil enforcement provision is unprecedented, according to ABA Journal: “While other kinds of laws authorize private citizens to sue for enforcement, such lawsuits are in addition to and in support of state enforcement.” The new Texas law is written so that civil enforcement—lawsuits by private citizens—is the only way the law will be enforced.

Scores of State Laws Aim to Overturn Roe v. Wade

As we have reported, the Texas abortion ban is only one among dozens of new state laws passed by conservative Republican legislatures and governors for the explicit purpose of challenging Roe v. Wade before the 6-3 conservative majority U.S. Supreme Court.

According to the Guttmacher Institute, an international non-profit research and policy organization, 90 state laws restricting abortion were passed in the first six months of 2021—more than in any year since the Roe v. Wade decision in 1973, breaking the previous record of 89 anti-choice laws enacted in 2011.

The Supreme Court announced in May 2021 that it will hear a case challenging a Mississippi abortion law that, if upheld, would effectively overturn Roe v. Wade. Two lower courts have ruled the law unconstitutional because it would ban all abortions after 15 weeks, with narrow exceptions for medical emergencies or “severe fetal abnormality” but none for cases of rape or incest.

The law was deliberately drafted in defiance of earlier Supreme Court decisions that have established a woman’s right to have an abortion up to 24 to 28 weeks, when the fetus could survive outside the womb. Were the Supreme Court to uphold the Mississippi law, it would reverse the long-standing “viability” precedent and open the floodgates to a flood of new state bans.

Texas Abortion Ban to be Enforced by Civil Lawsuits

The legal case against the Texas abortion ban will be highly scrutinized, and the outcome is far from certain. Successful challenges to other state abortion restrictions have targeted states’ attorneys general and other authorities. The Texas law was deliberately crafted so that state officials have no role in enforcing the law, effectively removing the lawsuit target. As Stephen Vladeck, a constitutional law professor at the University of Texas at Austin, told The New York Times, “It is unclear how, exactly, this strategy will play out. The group is suing judicial officials instead of executive ones because there is no one else to sue, not because the judges and clerks are considered bad actors.”

No one knows what will happen when organizations and advocates sue the judges and county clerks who would be the hearing and enforcing civil suits against Texas abortion providers. As the Times noted, judges may be sympathetic to challenges to a law deliberately crafted to dodge legal remedy. “Behind those procedural questions is a fairly fundamental question about whether states really can dramatically infringe constitutional rights and leave the victims without a remedy,” Vladeck told the Times. “If Texas can do this for abortion, then tomorrow California can do it for guns.”

Likewise, established legal precedent says that in order to sue a party, the plaintiff must have “standing,” or the ability to demonstrate the plaintiff is being harmed or has an interest in the outcome of the case. The Texas law throws open the floodgates for anyone, anywhere, to sue parties involved in a Texas abortion. Courts may be skeptical of the position that plaintiffs have standing simply because they don’t approve of abortion.