Texas' New Anti-Abortion Law Could Be Tough For Providers To Challenge In Court
Starting Sept. 1, Texans will be prohibited from getting an abortion once a fetal heartbeat is detected. That could be as early as six weeks, which is before most women even know they are pregnant. The law doesn’t carve out any exception for people who are victims of rape or incest.
And while similar so-called “heartbeat bills” across the country have been struck down by courts, Texas’ new law is going to be a little harder for abortion providers and abortion rights activists to stop.
That’s because Senate Bill 8, which was signed into law by Gov. Greg Abbott on Wednesday, won't be enforced by the state. There are no criminal penalties for violating the ban on abortions after six weeks. Instead, the law allows private citizens to sue anyone who helps a woman get an abortion.
Dyana Limon-Mercado, executive director of Planned Parenthood Texas Votes, said anti-abortion activists in Texas have seen "heartbeat" laws fail in other parts of the country, so they tried something different this session.
“This is a new tactic to circumvent the judiciary, basically,” Limon-Mercado said. “It is untested.”
Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said this new strategy is aimed at making the six-week ban “stick a little longer,” even though the law is clearly unconstitutional.
“What they are putting us through is more legal chutes and ladders until we can figure out a strategy to try to block it,” she said.
But John Seago, the legislative director of Texas Right to Life, said anti-abortion groups and lawmakers are not trying to skirt the courts.
“We are not avoiding a debate about the constitutionality,” he said. “There’s going to be that discussion. There is going to be that debate. It’s just going to be in a different venue, and it’s going to be a different framework for what we typically see.”
In the past, Seago said, anti-abortion laws in Texas have been stopped from going into effect while courts rule on them, a process that can take years. Usually, when a state is in charge of enforcing a law, it's more clearcut who can sue to stop the law's enforcement. Since almost anyone can enforce a law with a civil suit, SB 8 could be harder to block.
“This is a different approach to make sure that we can implement this law,” he said.
Physicians and attorneys across the state have warned SB 8 could lead to a deluge of harassing lawsuits aimed at abortion providers, as well as anyone who provides any kind of support to women who have an abortion.
In a letter sent to lawmakers last month, county attorneys, current and former elected officials, former judges, law professors and other members of the State Bar of Texas wrote the law is unconstitutional and would create an “unprecedented” change to Texas' courts.
“We are specifically concerned that [the measures] grant ‘any person’ the right to sue, including even those who do not reside in Texas and those with no connection to a patient, against a broad range of defendants,” they wrote.
In practice, anyone — including someone who doesn’t even know the person who got an abortion — could sue the doctor who provided the procedure, as well as the nurses and clinic staff. Civil liability would also extend to people who provide logistical or emotional support to a woman who gets an abortion, including family members, clergy and rape crisis counselors. The law also holds people liable if they merely “intend” to help a woman seeking an abortion after six weeks.
Limon-Mercado said women often rely on a network of people to help them get any sort of medical care, including abortions. Many women seeking the procedure already have children, so child care is something they often need. There are also groups that offer money to help low-income women pay for the procedure.
“So all of those different places where a person might need support to access abortion could find themselves being sued by people who disagree with the patient’s decision,” she said.
Despite the new hurdles, Limon-Mercado said, “all legal options are on the table” for trying to prevent the law from taking effect.
Miller said she’s hopeful the law will be blocked, just as many other Texas laws restricting abortion have been stopped by the courts.
“I think there are few people more resilient than the Texas abortion provider,” she said. “I am confident that [we] are going to figure out paths that will allow us to remain open and available to the people that need us.”
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