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Friday, December 8, 2023 | Back issues
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Texas Abortion Providers Preemptively Challenge Fetal Heartbeat Law

The providers say the bill is designed to force them to spend large amounts of time and money defending themselves in lawsuits across Texas, as anti-abortion “vigilantes” can sue them in any of the state’s 254 counties.

AUSTIN, Texas (CN) — A Texas fetal heartbeat law that has yet to take effect drew its first challenge Tuesday from a group of abortion providers who say it puts a bounty on them to be collected by anti-abortion crusaders.

Senate Bill 8, passed along party lines by Republican state lawmakers, will prohibit abortions once a fetal heartbeat is detected, as early as six weeks, unless a medical emergency necessitates the procedure after that juncture. It makes no exceptions for pregnancies caused by rape or incest.

“Our creator endowed us with the right to life. And yet millions of children lose their right to life every year because of abortion. In Texas, we work to save those lives,” Republican Governor Greg Abbott said in a May 19 signing ceremony for the bill.

The U.S. Supreme Court established a constitutional right to abortion in its 1973 Roe v. Wade decision, and over the last 48 years federal courts have struck down numerous state laws that tried to ban the procedure before viability, roughly six months into a pregnancy, when the fetus can survive outside the uterus.

But in a gambit to prevent SB 8 from being immediately struck down, its drafters took a novel approach: The government – state agencies, the attorney general, or any political subdivision – cannot enforce it.

Enforcement power is handed to private citizens who can sue abortion providers, or anyone who aids and abets an abortion, including an insurer for reimbursing the costs of one.

If found in violation of the law, defendants will face at least $10,000 in damages for each abortion they performed or induced.

Represented by the Center for Reproductive Rights, Planned Parenthood Federation of America and the ACLU, a group of Texas abortion providers and advocates took their own novel approach in a federal lawsuit claiming SB 8 is unconstitutional.

They named as defendants a class of all Texas state judges and a class of all Texas court clerks, seeking an injunction to block judges from enforcing the law, and to stop clerks from allowing SB 8 enforcement lawsuits to be filed.

The abortion providers say the bill was designed to force them to spend large amounts of time and money defending themselves in lawsuits across Texas, as anti-abortion “vigilantes” can file suit against them in any of the state’s 254 counties and the suit cannot be transferred to any other county absent the parties’ joint agreement.

“They and their staff could be forced to defend dozens if not hundreds of simultaneous S.B. 8 lawsuits scattered across the state,” Tuesday's complaint states.

In addition, the challengers say, SB 8 opens up people involved in an abortion to potential $10,000 judgments, payable to the deputized citizens who sue them, even if they had no idea the abortion they assisted was illegal.

“Someone who accompanies her sister to an abortion clinic and pays for the abortion, or a sexual assault counselor who calls an abortion clinic on behalf of a patient, could find themselves dragged into a court across the state,” the lawsuit states. “And although abortion patients cannot be sued under S.B. 8, the law provides any abusive partner, controlling parent, or disapproving neighbor with a ready tool to go after the patient’s doctor for a court order to block that patient’s abortion choice,” it continues.

Experts say opponents of state laws typically challenge them after they are enforced. SB 8 is set to go on the books Sept. 1.

“What this lawsuit basically boils down to is that Planned Parenthood thinks they have a constitutional right to challenge a law before it goes into effect. They are saying we should never even have to face this law because it’s so bad,” said Josh Blackman, a constitutional law professor at South Texas College of Law in Houston.

“I don’t think I’ve ever seen a lawsuit quite like this where abortion rights groups have sued every single judge in the state, and they are seeking to enjoin every judge in the state,” he added in a phone interview.

The abortion providers take issue with another part of the statute they say is designed to deter challenges to any abortion restriction in Texas, not just SB 8.

“Civil-rights plaintiffs who challenge any Texas abortion restriction can be held liable for their opponents’ attorney’s fees and costs unless they sweep the table by prevailing on every single claim they bring,” the lawsuit states.

Though state officials ostensibly cannot enforce SB 8 through litigation, the lawsuit names as defendants the directors of the Texas Medical Board, Texas Nursing Board, the Texas Board of Pharmacy and the commissioner of the Texas Health and Human Services Commission.

The abortion providers say they included these state officials because they can bring disciplinary or civil actions against health care professionals who violate codes of conduct established by other state laws, and those codes will be amended to include SB 8’s bar on abortions after a fetal heartbeat is detected.

Texas Attorney General Ken Paxton is also a defendant in the lawsuit as, according to the complaint, he has the authority to file legal actions against Texas-licensed doctors and physicians assistants who violate the state’s Medical Practice Act, including the restrictions established by SB 8 once it takes effect.

The last defendant is Mark Lee Dickson, director of Right to Life East Texas, who has already threatened to sue the plaintiff abortion providers once SB 8 goes on the books, and has offered to find attorneys to file enforcement lawsuits for any like-minded Texans.

Seeking a declaration the bill is unconstitutional, the plaintiffs claim Texas is effectively putting a $10,000 bounty on anyone who performs or aids an abortion.

“The state has put a bounty on the head of any person or entity who so much as gives a patient money for an abortion after six weeks of pregnancy, before most people know they are pregnant,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement.

More than a dozen states have passed similar fetal heartbeat bills.

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Categories / Civil Rights, Government, Health, Law

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