By Calvin Freiburger
Texas Gov. Greg Abbott signed a law Wednesday attempting to ban the abortion of babies with detectable heartbeats through an unusual enforcement mechanism supporters hope will get around the legal obstacles pro-life laws normally face.
House Bill 1515, titled the Texas Heartbeat Act, requires abortionists to screen for a preborn baby’s heartbeat and prohibits abortion if a heartbeat can be heard (generally as early as six weeks), with exceptions only for medical emergencies.
Notably, however, the state would not be prosecuting violators of the new law, which actually forbids any enforcement action “by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision.”
Instead, it “exclusively” empowers private citizens to bring civil suits against the abortionists, punishable by a minimum of $10,000 in statutory relief per abortion plus whatever additional injunctive relief is deemed “sufficient to prevent the defendant from violating this chapter or engaging in acts that aid or abet violations of this chapter.”
“It’s a very unique law and it’s a very clever law,” South Texas College of Law Houston professor Josh Blackman told The Texas Tribune. “Planned Parenthood can’t go to court and sue Attorney General [Ken] Paxton like they usually would because he has no role in enforcing the statute. They have to basically sit and wait to be sued.”
Notably, these private citizens do not need to have any connection to anyone involved in a specific abortion. “Every citizen is now a private attorney general,” Blackman said. “You can have random people who are against abortion start suing tomorrow.”
Whether this new strategy will prevail remains to be seen, but such experimentation with legal strategies has been provoked by national judicial precedent that forbids states from directly banning abortion. Full bans take effect well before the Supreme Court’s “fetal viability” threshold, and so are consistently enjoined by lawsuits from the abortion industry.
Instead, states typically enact them in hopes of provoking a legal battle that would hopefully reach the nation’s highest court and instigate a review of Roe v. Wade, thereby potentially overturning decades of pro-abortion legal precedent and freeing the states to set their own abortion laws.
Pro-lifers are cautiously hopeful that the Supreme Court’s upcoming hearing of Dobbs v. Jackson Women’s Health Organization, which concerns a 15-week abortion ban in Mississippi, will provide such an opportunity.