I tip my cap to the drafters of S.B. 8, the Texas Heartbeat Act.
In a novel and aggressive attempt to protect the lives of unborn Texans, legislators passed a law that both prohibits abortion after six weeks (when a fetal heartbeat is most often detected) and prevents enforcement of the act by state officials, while simultaneously permitting private citizens to file lawsuits against anyone who “performs or induces an abortion” (save for abortions performed pursuant to a “medical emergency”) or who knowingly aids and abets that abortion.
Private actors who successfully sue an abortion provider or those assisting an abortion are entitled to injunctive relief to prevent further violations by the defendant, damages of at least $10,000 for each violation, and costs and attorney’s fees.
By structuring this abortion bill in a way usually reserved for state and federal fraud claims, Texas has made it difficult for litigation-minded politicos to file a lawsuit to get a judge to invalidate the act before it can take effect.
It’s the act’s private enforcement provision that shielded two defendants—a Texas state court judge and a pro-life activist—from civil liability in Whole Woman’s Health v. Jackson, a suit brought by a consortium of Texas abortion providers that sought to enjoin enforcement of the act.
Having lost in the lower court, the plaintiffs filed an emergency petition requesting injunctive relief with the Supreme Court.
But in nothing more than one long paragraph, a narrow conservative majority of Supreme Court justices dismissed denied that request, writing:
The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden…And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.
Texas had gambled big—and won.
But will the victory hold?
President Biden has pilloried the law, saying it “blatantly violates” Roe v. Wade, and will “significantly impair access to the health care [women] need,” repeating the tired trope that abortion—an almost exclusively elective procedure designed to end a human life—is “health care.”
The President also promised to “launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe.”
U.S. Attorney General Merrick Garland threatened to apply 18 U.S.C. § 248, the Freedom of Access to Clinic’s Entrances Act (FACE), to pro-life activists while the Justice Department “urgently explores all options to challenge Texas SB8.”
But FACE doesn’t quite seem the right offensive mechanism, as the statute is written in such a way as to prevent physical obstruction to clinics.
It prohibits anyone “by force or threat of force or by physical obstruction, [from] intentionally injur[ing], intimidate[ing] or interfere[ing] with or attempt[ing] to injure, intimidate or interfere with any person [from]…obtaining or providing reproductive health services,” something the Heartbeat Act clearly doesn’t do.
Likewise, abortions in Texas seem to have ground to a halt for the moment, so access to abortion clinics is not currently being obstructed—physically or otherwise—by pro-life activists.
Harvard Law Professor Laurence Tribe has posited that the Justice Department ought to apply 18 U.S.C. § 242 to those who seek private enforcement actions.
This statute, aimed at thwarting the Ku Klux Klan’s intimidation tactics during the 1940s, makes it a crime to “under color of law,” willfully deprive individuals “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”
But this seems an outsized response to a civil enforcement option that, to date, has yet to be pursued by anyone in Texas.
As for GOP stalwarts normally supportive of efforts restricting abortion, the reception to the Court’s refusal to intervene in the Jackson case has been lukewarm.
The absence of exceptions for rape or incest in the Heartbeat Act makes the act low-hanging fruit for a left-wing frontal assault.
And both Democrats and centrist Republicans are expressing ambivalence about the prospect of deputizing citizens to enforce a law ordinarily left to the purview of the state law enforcement.
Citizen deputization on an issue that has so harshly divided a nation for 50 years—particularly on the cusp of midterm elections and the Supreme Court considering another important abortion case out of Mississippi—is fraught with problematic possibilities.
For example, states like California have proven they are already all too happy to infringe on the constitutional right to free exercise. Knowing that all signs point to continued Democratic leadership in that state (contra Texas), it wouldn’t take much for legislators to use a bill like the Heartbeat Act with a citizen enforcement component, as a model for passing similar bills challenging other constitutional freedoms–whether or not such a bill ultimately survives a legal challenge.
A “whistleblower” website that encourages reporting by individuals with knowledge of prohibited abortions that violate the Heartbeat Act has already been taken down by two different platform providers, proving that, if nothing else, the Left (and its Big Tech bed fellows) will use its influence and income in any possible way to mute the impact of the Texas law.
But perhaps the biggest question remains unanswered: Will the Heartbeat Law survive constitutional scrutiny?
As any honest reader of the Supreme Court’s brief opinion will tell you, the U.S. Supreme Court assiduously avoided the underlying constitutional issues with the Texas law, going so far as to say that their denial of the emergency petition offered “no conclusion about the constitutionality of Texas’s law,” despite Justice Sonia Sotomayor’s passionate dissent that the Court should have immediately intervened given the law’s seeming unconstitutionality.
Defendants in private enforcement actions can always raise the act’s unconstitutionality as a defense to claims of its violation.
But in the short term, even the threat of private enforcement might have a “chilling” effect and prevent the exercise of a right the Supreme Court has recognized (no matter how strained its reasoning) for the past 50 years.
In the short term, it’s unlikely other states will apply the Texas model, fearing that with the midterms looming, further threats to abortion are likely to enflame the Left if they see their sacred cow looking more and more like a sacrificial lamb.
GOP attempts to regain or retain ground in the U.S. House of Representatives have already been targeted by Democrats in red states most likely to pass such bills like Florida and Arizona, where the GOP controls the governor’s mansions and both chambers of the state legislatures.
On Sept. 9, 2021, Attorney General Garland made good on previous threats and formally announced that the Justice Department had launched its lawsuit against Texas over the Heartbeat Act. Among the claims asserted: that the Texas law is invalid under the Supremacy Clause and the Fourteenth Amendment, is pre-empted by federal law, and violates the doctrine of intergovernmental immunity.
The future of a state’s ability to regulate and restrict abortion comes down now to a matter of timing. While the ink on Justice’s lawsuit is still wet, the shadow of Dobbs v. Jackson Whole Women’s Health looms large on the Supreme Court’s upcoming term.
Questions on the constitutionality of pre-viability restrictions on abortion, and the legality of the Texas Heartbeat Act or others like it, for better or for worse, will be decided soon enough.
This piece originally appeared in NewsMax