Attorney General Ken Paxton on Texas Heartbeat Act: We Are Hopeful
Attorney General Ken Paxton of Texas speaks openly about the Texas Heartbeat Act after oral arguments were heard this week at the Supreme Court.
Editor’s Note: This interview originally ran on EWTN Pro-Life Weekly on Nov. 4. It has been edited for clarity and length.
As the Supreme Court heard oral arguments this week on the Texas Heartbeat Act, EWTN Pro-Life Weekly host Catherine Hadro sat down with Texas Attorney General Ken Paxton and Mallory Quigley of the Susan B. Anthony List to discuss the case, what is at stake, and what the Biden administration is doing to fight this pro-life legislation.
Hadro: Texas Attorney General Ken Paxton joins us, along with Mallory Quigley, vice president of communications for the Susan B. Anthony List. Thank you both for being here on this very significant day. The Supreme Court heard two different challenges to Texas’ Heartbeat Law, to your law. Can you explain Texas’ defense — and how do you think oral arguments went?
Paxton: It was hard to tell how they went. I mean, they asked so many [questions]; there are nine justices: They asked a lot of different questions and go [into] a lot of different directions. And it’s pretty complicated to try to assess how that turns out. Anybody that knows the answer after hearing oral argument, good luck. I’ve not met many people that can predict exactly how those things are going to go. But our argument is simple: The Texas Legislature passed the Heartbeat Bill to protect the unborn based on the detection of a heartbeat. And these are elected representatives, and they gave a private cause of action to any citizen who wants to bring a claim, which the legislature has the ability to do in every state and the Supreme Court. Hopefully we’ll leave that alone and let our state operate the way it should.
Hadro: You were inside the Supreme Court during these oral arguments with your solicitor general. And there was this repeated theme of a “chilling effect” that the Texas Heartbeat Law has. Here’s what Justice [Sonia] Sotomayor had to say.
Sotomayor: (audio clip) So let’s go to what the harm is that you’re seeking an injunction against the clerks for. Am I understanding correctly that you believe that the way this S.B. 8 is structured, that what the chilling effect is, the very multiplicity of lawsuits that are threatened against you?
Hadro: What is your response to this claim that the Texas Heartbeat Law has a chilling effect? What does that mean?
Paxton: So there’s a negative consequence. If you do an abortion on a woman who, when there’s a heartbeat detected, you’re subject to potential litigation and subject to potential damages. That’s the way all lawsuits are; they’re based on law. And if you violate that law, you have the potential of being sued. You might win; you might lose. There’s a chilling effect as it relates to any law the legislature passes; that has some type of consequence.
Hadro: Thank you for that clarity. Mallory, a significant day today — a major abortion case at the Supreme Court today — and exactly one month from today, arguably an even more significant abortion case, with Dobbs v. Jackson Women's Health Organization. Can you just speak about the significance of this moment that we’re in right now as a pro-life movement?
Quigley: We’re at the culmination of decades’ worth of long work at the state level, the federal level in the courts, in the realm of politics; and, of course, in the realm of culture. You know, outside the Supreme Court today, supporting the attorney general and his team, we had women from the pregnancy-center movement in Texas that is coming alongside women to support them and their families. There were state lawmakers, the federal lawmakers across the street from the court. And we are having this major national conversation about unborn life and where babies ought to be protected. How encouraging it is to have this conversation right now about what Texas has done to protect babies when their heartbeats can be detected. And this is something that reflects in the hearts and minds of the American people. The Dobbs case, you know, they’re going to decide on: Are there any pre-viability bans on abortion that are constitutional? And that’s going to have an effect in Texas, Mississippi and across the country. And it really just gets to the heart of the reality: that this issue of abortion is not settled in the hearts and minds of the American people. It’s not settled in our law, as Texas lawmakers have demonstrated, and we need the court to take the handcuffs off the states and allow them to pass laws that reflect the values of the people.
Hadro: Justice [Elena] Kagan was critical of the unique design of the Texas Heartbeat Law. Let’s take a listen to something she said during oral arguments.
Kagan: (audio clip): And the fact that after, oh, these many years, some geniuses came up with a way to evade the commands of that decision, as well as the command that the broader — the even broader — principle, that states are not to nullify federal constitutional rights.
Hadro: I want to give you a chance to address some of the criticisms, and I think misconceptions, surrounding the Texas Heartbeat Law, and especially this idea that it turns citizens into bounty hunters.
Paxton: ... That has a negative connotation, but anytime you create a cause of action there, you could call anybody that has the right to go to court a bounty hunter, because they’re going in there for damages, which means they’re going in to get some type of payment. So you could say that about any cause of action created by any legislature, whether it was federal or state, it could be viewed that way, if you don’t like the actual law. And in this case, obviously people who don’t like this law call them bounty hunters, but they’re really just regular plaintiffs, like any other plaintiff would be.
Hadro: Mallory, when Texas’ Heartbeat Law was enacted, it was seen as a huge pro-life success, but the Biden administration — President Biden himself — said he would take a “whole-of-government response” to combat it. What action has the administration taken so far?
Quigley: Well, I’m glad to hear you call it the Heartbeat Act, Catherine. I know a lot of people in the media and even the justices — that was really surprising to me — you know, I looked up the legislation, because I was curious. It actually says this law is to be known as the Heartbeat Act, not S.B. 8. You know ... they can’t even say the word “heartbeat.” But you know this is no surprise, what the Biden administration has done. I mean, during the 2020 midterms, we had the candidates trying to outdo each other on who is more pro-abortion. Our current vice president even suggested that she wanted her Department of Justice to pre-clear laws that state lawmakers wanted to debate and decide on. This is total overreach — completely outside the creation of our founding — to have separation of powers and also the principles of federalism, the complete federal government overreach. I mean, we heard from the solicitor general today, and it’s no surprise, to have this “all-of-government response” from a president who is very beholden to the abortion industry and is taking his cues from them. I mean, he can’t even support common sense and bipartisan policy like the Hyde Amendment. Of course, he had to have this overreach.
Hadro: And we’re seeing that more and more. It is impossible to know how the justices might roll on this, but as a top legal expert yourself, do you have any indication as to what the ruling might be on the Texas Heartbeat Law?
Paxton: So, I’ve sat in there many times. I’ve been unable to predict, cause you get nine justices. They’re asking questions sometimes to look for certain ways to help them understand; and other times, how they’re going to actually describe whatever they’re going to decide. So I don’t know that anybody’s really good at predicting how the justices, [how a decision] is going to turn out on this. And sometimes you can get an impression, and it ends up being the wrong impression. So, you know, I’m optimistic; we made good arguments — the type of things that they’re going to have to do — if they’re going to stop this from going into effect are pretty unprecedented; they’ve never been done. As a matter of fact, Justice [Neil] Gorsuch asked the solicitor general, the United States about this. And he said, has this ever been done? Have you ever granted an injunction — has an injunction ever been granted against all the courts of the state? And ... she said, no; she finally answered the question. So we’re talking about some extraordinary remedies if they decide to stop our law.
Hadro: And you’re holding onto hope.
Paxton: Absolutely. I’m always hopeful.
Hadro: Mallory ... finally, can you speak to what this moment highlights about the important role that the courts have in the pro-life movement?
Quigley: For 50 years or more, the courts have been the backstop of the pro-abortion lobby. That has been where they have run — every time a state passed a pro-life law — expecting an injunction. You know, they’re coming from a very entitled place here, because they’ve won everything up to this point. And the pro-life movement really has, you know, nothing to lose because of Roe and subsequent abortion decisions. We’re one of seven countries, including China and North Korea, that allow abortion all the way through pregnancy, past the point the baby can feel pain, and we’re indebted — all indebted — to Texas for coming up with this creative law that is actually saving babies — as many as 8,000 babies, I think, so far. And it’s going to continue to protect our children and women so long as it’s in effect. But the court is changing: We have these pro-life justices on the Supreme Court; President Obama left office with an unprecedented number of federal judges, seats empty; President Trump filled those. And so, as all sorts of pro-life laws are entering into litigation in Texas and across the country, we’re hopefully going to be seeing more pro-life rulings.
Hadro: Significant week! I’m so grateful to have you both here with us: Texas Attorney General Ken Paxton and Mallory Quigley with the Susan B. Anthony List. Thank you both.