Last Updated on March 18, 2021 – 10:00 AM CDT
This article originally appeared in The Texas Tribune: Read More
Texas lawmakers — pushing to drastically restrict abortion access — have included language in a priority bill meant to make it harder to block the law from taking effect and easier to sue abortion providers.
The provisions seem intended to reshape the legal landscape, while many federal courts stop restrictive abortion laws that have passed out of conservative statehouses.
Proponents of the bill told lawmakers its “unique drafting” could make it the first of its kind that can’t be held up in the courts before it takes effect. But legal experts and abortion rights advocates say the proposals amount to a gambit meant to drive abortion clinics out of business.
“Regardless of how you try to dress up an unconstitutional bill, it is still unconstitutional,” said Elisabeth Smith, chief counsel for state advocacy and policy at the Center for Reproductive Rights.
The proposed bill would strip Texas officials of their typical enforcement role — and open the door for any Texan to sue providers they thought weren’t complying with state abortion laws. By pushing enforcement to the civil court system, anti-abortion activists hope to make it harder to sue state officials to stop an unconstitutional law.
The bill also tries to give state actors immunity from lawsuits.
The provisions are packaged in one of Lt. Gov. Dan Patrick’s priority measures, dubbed the “heartbeat bill.” Senate Bill 8 would ban abortions as early as six weeks, before many women know they are pregnant. It has an exception for medical emergencies but not for cases of rape or incest. It was approved by the powerful State Affairs Committee Tuesday and will be sent to the full Senate for consideration.
“We as a state, as a society, as a government, have a duty — the highest duty — to protect an innocent human life. Ten other states have passed heartbeat bills. We have to admit, Texas is behind,” Sen. Bryan Hughes, the lead author of SB 8 and chair of the committee, said at a recent hearing.
Through his office, Hughes said he “drafted a law that will take effect and remain in effect.”
Nearly all the Republicans in the Senate have signed on as authors of the bill.
Versions of the law have been passed in other states and have all been blocked by the courts, said University of Texas at Austin law professor Elizabeth Sepper.
What’s different in Texas “and what the Texas Legislature is sort of pinning its hopes on — are the procedural maneuvers,” she said.
SB 8 would let anyone in Texas sue an abortion provider if they believe they violated state laws. The person would not have to have a connection to someone who had an abortion or to the provider.
Someone who knowingly “aids or abets” others getting abortions prohibited under state law could also be hit with lawsuits, according to a draft of the bill.
Advocates of abortion rights say the provisions would upend “the judiciary’s check on the Legislature” and could leave doctors — or even families of those who receive abortions — to face harassing and frivolous litigation.
Legal experts also said provisions in the bill represent a big break from how the law normally works.
“It’s an extreme departure from current law that someone [doesn’t have] to be connected to a problem in order to sue,” said David S. Cohen, a law professor at Drexel University’s Thomas R. Kline School of Law.
“It really opens up for almost endless liability, which is one way that the anti-abortion folks, including the Texas Legislature, strategize to shut down abortion clinics,” he said.
Smith said the idea that anyone could sue abortion providers makes a “mockery of the legal system, which requires the person suing to have actually sustained a harm that provides the basis of the lawsuit.”
Hughes, through his office, disputed that it was a marked departure to let anyone sue.
He also rejected the argument that the bill would make way for harassment or baseless lawsuits.
“People who obey [the law] of Texas face no risk of lawsuits or civil liability,” he said, through his office.
Mary Ziegler, a law professor at Florida State University, said the language in the Texas proposal seems to be patterned on an old Louisiana law that let women who got abortions sue their providers for years after the procedure was performed. In that case, the 5th U.S. Circuit Court of Appeals said that Louisiana officials could not be sued, because it was a private matter the state was not involved in.
The Texas bill goes further, but Cohen said the precedent would apply if the Texas bill passes. He predicted abortion providers would lose in the lower courts if they tried to sue first. They could appeal to try to change the precedent before the U.S. Supreme Court, he said.
Lee Kovarsky, a law professor at UT-Austin, described parts of the bill as an “obvious gimmick.”
Typically, abortion rights advocates file lawsuits to stop unconstitutional abortion restrictions from taking effect. Those bills task the government with enforcing the laws and pursuing criminal or civil penalties against those who violate them.
The provisions in Texas try to turn that on its head by giving the reins to private citizens.
For the state to “come in and say, ‘oh you can’t sue us — the state officials — on the pre-enforcement challenge because we’re not enforcing anything, it’s only the private people who are enforcing, you have to go figure out who those are, and sue them,’” Kovarsky said. “I do not think that argument would be taken seriously [at the U.S. Supreme Court]” though it might be in lower courts.
Leah Litman, a law professor at the University of Michigan, said it’s clear lawmakers are trying to “eliminate any possible defendant that people could sue” to block the law from going into effect.
But she said abortion providers should still be able to challenge the law before it takes effect, in spite of the state’s efforts.
“You need to have a way to be able to prevent the state from pursuing unconstitutional laws that don’t force you to violate the law, and then challenge it,” she said.
Hughes, through his office, disagreed. He said an abortion provider who is sued could challenge the constitutionality of the law after they had been sued.
Ziegler, who wrote a book called “Abortion and the Law in America: Roe v. Wade to the Present,” said a federal court could conclude the law itself was unconstitutional.
“It’s not like some private individual just took it upon themselves to bring a lawsuit,” she said. “SB 8 created the ability for private people to sue.”
Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.