Texas Heartbeat Act Would Be Enforced by Lawsuits From Private Citizens
Texas pro-lifers argue this new legal approach will sidestep pro-life laws being tied up in the courts.
In a record-setting year for pro-life laws across the country, some states have gotten creative in their legal approach as they face challenges from abortion providers. Texas Gov. Greg Abbott, a Republican, signed a law in May that prohibits abortion after the detection of a fetal heartbeat — typically at six weeks gestation. Unlike other heartbeat bills, this law would be enforced by lawsuits from private citizens rather than the government, an approach that Texas pro-lifers argue could be successful for other types of pro-life legislation.
The new heartbeat law, which would go into effect Sept. 1, states that a doctor “may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child,” with an exception to save the life of the mother. It also does not authorize “prosecution of a woman on whom an abortion is performed.” The law says that “any person, other than an officer or employee of a state or local governmental entity in this state” can bring a civil action against an individual who performs an abortion or “knowingly engages in conduct that aids or abets” an abortion, including “paying for or reimbursing” the costs of the abortion.
Jonathan Saenz, president of Texas Values, told the Register Thursday that the Texas heartbeat law is different from other state heartbeat laws because the government is not the enforcer of the law.
“The Texas heartbeat law uses the mechanism of civil enforcement and allows citizens to bring these civil actions in court with a penalty against the abortion doctor,” he said.
Saenz explained how removing the government from the enforcement role makes a difference.
“Abortion advocates like Planned Parenthood really make a living out of challenging pro-life laws like the heartbeat law in court before they ever go into effect. These are often called preenforcement challenges,” he said, noting that when the government is involved in the enforcement of a law, it is required to protect against any violations of constitutional rights.
“I don’t believe there’s a constitutional right to abortion, but that is what our case law is for now, which is followed by judges; so in order for there to be a violation of the so-called constitutional right to an abortion, the government would have to restrict or take that away,” he explained. “The Texas heartbeat law does not work that way; the government is not involved in it. It’s civil actions by private citizens that hold the abortion doctor accountable in court.”
Said Saenz, “When you don’t have the government involved in enforcing this law, you lose the ability to have that legal argument that there’s a constitutional violation in bringing up preenforcement challenges.”
Saenz added that this bill is not the first state pro-life law to be enforced by private citizens rather than the government. He pointed to the 2001 Okpalobi v. Foster decision in Louisiana by the 5th Circuit Court of Appeals, which permitted women to sue their abortion providers up to 10 years after the procedure. The Okpalobi case was recently cited by U.S. district Judge James Hendrix in his June decision involving a voter-backed ordinance declaring Lubbock, Texas, a “sanctuary city for the unborn” and outlawing all abortions within the city limits. That ordinance was enforced, like the heartbeat bill, by lawsuits from citizens.
In dismissing Planned Parenthood’s lawsuit against the ordinance, Judge Hendrix wrote that because “plaintiffs fail to show that any relief provided by this court is likely to redress the injury at issue — citizen suits brought in state court — the court lacks jurisdiction.” Since the ordinance went into effect in June, the Planned Parenthood in Lubbock has had to redirect women to Dallas for abortions while the facility filed a motion to reconsider.
Saenz said that pro-life laws with enforcement by citizens and not the government could become a key strategy adopted “by other states when it comes to pro-life legislation.”
Josh Blackman, constitutional law professor at South Texas College of Law Houston, told the Register in June that the ordinance in Lubbock was “a creative and clever law. It’s creative in how they’ve tried to get around this problem of preenforcement challenges and clever around enforcement.”
Planned Parenthood Lawsuit
Planned Parenthood and other abortion providers sued over the Texas heartbeat law last week, arguing “in effect, S.B. 8 places a bounty on people who provide or aid abortions, inviting random strangers to sue them,” referring to the $10,000 in legal fees that those who sue can recover under the law.
Saenz is unfazed by this challenge from abortion providers, calling it “predictable” because “the abortion industry has sued government officials who are already specifically excluded from being involved in this enforcement of the law.” He called it a “desperate attempt by abortion advocates to intimidate and bully Texas citizens, hoping they will be afraid to protect babies with a detectable heartbeat.”
He pointed out that Planned Parenthood’s lawsuit named not only government officials but “some private individuals who they have keyed in on or identified as likely the people that would come forward to enforce it, so we know that’s what they want citizens to fear — that if they try to enforce the Texas heartbeat law through the court system that they’re going to get pulled into a court case — but that’s not going to work.”
In addition to government officials, the suit names Mark Lee Dickson with Right to Life of East Texas as a defendant. He began a “sanctuary cities for the unborn” movement in 2019, helping 31 municipalities, including Lubbock pass ordinances banning abortion.
Other States Take Note
Katie Glenn, government affairs counsel at Americans United for Life, confirmed that the heartbeat law is attempting to remove “the state from the equation to avoid having Planned Parenthood of Texas and whoever it is come and immediately file a lawsuit against the state’s enforcement.”
At Americans United for Life, she told the Register, “we really view the states as the laboratories of democracy, and we think that states should pursue creative solutions and certainly applaud Texas for trying to do that.” She noted that Texas has often been innovative on new legislative approaches and that state lawmakers in other states are watching how the law will unfold.
Glenn said that there were unanswered questions about how the law would ultimately be enforced, given the state’s exclusion from involvement. She wondered about a situation in which an abortion facility gets a judgment against it after a lawsuit from a private citizen, but it refuses to comply with the ruling, asking “who makes them, and does that potentially pull in state action that they could then challenge the law under?
“There is a lot that is yet unknown about how the law may be utilized,” Glenn said. “I think that’s something that we’re certainly paying attention to, and it’s the kind of the question that we’re getting from folks in other states as they consider, ‘Is this something that we might pursue in our state next year?’”
Ultimately, she said, the approach to pro-life laws with enforcement by citizens could be “one of the tools in the toolkit for protecting women and babies from abortion in Texas.”