By Calvin Freiburger
Texas may become the first state in almost half a century to effectively ban abortions Wednesday, thanks to a federal court’s decision not to block a law enacted earlier this year against aborting babies with detectable heartbeats.
Signed in May by Republican Gov. Greg Abbott, 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.
The law relies on a unique enforcement mechanism. Instead of having the state prosecute violators, it “exclusively” empowers private citizens to bring civil suits against 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.”
Notably, these private citizens do not need to have any connection to anyone involved in a specific abortion. South Texas College of Law professor Josh Blackman has explained that the advantage of this approach is that “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.”
Texas Right to Life (TRTL) has set up a website where concerned Texans can anonymously report abortionists who commit abortions after finding a heartbeat or without testing for one.
The Texas Tribune reports that abortion organizations including Planned Parenthood Center for Choice and Whole Woman’s Health Alliance filed emergency motions with the 5th Circuit Court of Appeals seeking a stay on enforcing the law. But on Friday night the court canceled a hearing on the matter that had been planned for Monday, then denied the motions on Sunday afternoon.
The 5th Circuit’s denial cleared the way for the law to take effect Wednesday, September 1, but abortion defenders continue to pursue additional avenues to block it.
On Tuesday, Travis County District Court Judge Amy Clark Meachum granted a temporary restraining order keeping Texas Right to Life and its executive director, John Seago, from bringing enforcement suits against Dallas attorney Michelle Tuegel “and others like her who speak about, provide funds to, and help women access abortions and other reproductive health services,” according to Tuegel.
The order does not block the law itself, but abortion allies hoped it would hobble enforcement by limiting TRTL’s ability to help organize lawsuits and causing a chilling effect among others who might sue abortionists on their own.
Texas Right to Life quickly declared that it won’t, assuring supporters that the order “does not block the Texas Heartbeat Act from being enforced at midnight.” It explained that the “plaintiffs claimed they feared Texas Right to Life would sue them under the Texas Heartbeat Act for aiding and abetting illegal abortions,” but “Texas Right to Life never threatened to sue these specific plaintiffs.” The group further stressed that it can still sue “others who violate the Texas Heartbeat Act, including abortionists.”
Meanwhile, the New York Times reports that the pro-abortion Center for Reproductive Rights (CRR) has petitioned the United States Supreme Court to block the Texas Heartbeat Act before Wednesday. If it does not, CRR president Nancy Northup said, “Texas politicians will have effectively overturned Roe v. Wade.”
One way or another, the Supreme Court will ultimately decide the long-term fate of this and other abortion bans across the country.
The Court announced in May that it would be hearing Dobbs v. Jackson Women’s Health Organization, which concerns a Mississippi law banning abortions from being committed past 15 weeks for any reason other than physical medical emergencies or severe fetal abnormalities. After its enactment in 2019, the 5th Circuit deemed it unconstitutional because of an “unbroken line dating to Roe v. Wade.”
Various pro-life public officials, scholars, and activists have filed amicus briefs urging the Supreme Court to not merely uphold the law but take the opportunity to directly overturn both Roe and 1992’s Planned Parenthood v. Casey (which opened the door to some abortion regulations while reaffirming the “right” to abortion itself).
Many pro-lifers see the case as the greatest test yet of the current justices, a majority of whom were appointed by Republican presidents, yet have still disappointed pro-lifers and conservatives on various occasions.
Only Justice Clarence Thomas is explicitly on the record as anti-Roe, and only he and Justice Samuel Alito have established consistently conservative records over a significant period of time. Many have placed a great deal of hope with former President Donald Trump’s appointees, though conservatives have also been alarmed by Justice Neil Gorsuch voting to redefine “sex” in federal civil rights law last year, and Justices Brett Kavanaugh and Amy Coney Barrett voting not to hear several cases of concern to religious, conservative, and/or pro-life Americans.
“Roe is grievously wrong for many reasons, but the most fundamental is that its core holding—that the Constitution protects a woman’s right to abort her unborn child—finds no support in the text of the Fourteenth Amendment,” Thomas has written. “[T]he idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical.”