AUSTIN, Texas (CN) — Arguments over Texas’ controversial abortion ban, Senate Bill 8, were heard in a Texas court on Wednesday. Attorneys representing abortion providers in the state gave their testimony, seeking the law be permanently enjoined due to violations of the state and U.S. Constitutions.
The case before Judge David Peeples consists of 14 cases brought by Planned Parenthood clinics in Texas, organizations that assist women seeking an abortion and individuals against Texas Right to Life, a pro-life organization and its legislative director John Seago.
Julie Murray, an attorney with Planned Parenthood Federation of America, argued that Texas Right to Life and John Seago are being sued “not because of their pro-life values, but for their intentions to enforce an unconstitutional law.”
Senate Bill 8, also known as the Texas Heart Beat Act, went into effect on Sept. 1 and has effectively banned all abortions in the state. Passed by the GOP-controlled Texas Legislature and signed into law by Republican Governor Greg Abbott, SB 8 bans all abortions once a fetal heartbeat is detected, approximately six weeks. There are no exceptions to the law in cases of rape or incest.
A unique aspect of the law is that it is not enforced by officials in the state of Texas, but by private individuals bringing a lawsuit against anyone who “aids and abets” in an abortion that occurs after six weeks. Those who could be sued under the law include abortion providers, clinic staff or a family member that provided transportation to a clinic or money for someone to obtain an abortion.
A private individual who brings suit against a clinic or individual and prevails can be awarded $10,000 and attorneys fees. The law is not exclusive to Texas residents alone, anyone, resident or not, may bring a suit against someone who provided or helped someone obtain an abortion in the state.
The plaintiffs in these cases sued Texas Right to Life to prevent the group from suing abortion providers under the new law. Heather Hacker, an attorney representing Texas Right to Life, argued that the suits should be dismissed for lack of jurisdiction and for infringing the First Amendment rights of the organization and Seago. Hacker has filed a plea to the Texas Citizen Participation Act (TCPA), an anti-SLAPP statute that protects the speech rights of individuals.
“It is ironic [the plaintiffs assert] that people who advocate for reproductive justice shouldn’t be sued for their beliefs, but apparently if you advocate for pro-life principles or in favor of SB 8, it is okay to be sued,” said Hacker. “The TCPA however says that is not okay.”
Hacker argues that the cases should be dismissed under the TCPA because the plaintiffs’ suits against her clients are predicated on their beliefs and desire to block them from acting on those beliefs.
Responding to Hacker, the plaintiffs’ attorneys argued that the cases against Texas Right to Life and Seago are lawful and are not subject to dismissal under the TCPA. The plaintiffs see their cases as an effort to stop the pro-life group from enforcing what they see as an unconstitutional law.
The plaintiffs’ attorneys made several claims to prove the unconstitutionality of the law under both the Texas and United States Constitutions. They repeatedly pointed to the fact that the law violates a woman’s constitutional right to an abortion under supreme court precedent set in Roe v. Wade and Planned Parenthood v. Casey. However, their focus was primarily on SB 8’s mechanism of enforcement.
Julie Murray, with the Planned Parenthood Federation of America, said that because the abortion ban is unconstitutional, the ability for individuals to bring suits is invalidated.
“The prohibition on pre-viability abortion is unlawful under Texas Constitutional law, then the enforcement mechanism for that prohibition is irrelevant because there is no such prohibition," said Murray. “In other words, you cannot aid and abet a prohibited abortion if the underlying prohibition on abortion is itself unconstitutional.”
Jennifer Ecklund, an attorney representing Allison Van Stean, a pro-choice attorney, raised a separate issue with the law's enforcement through private citizens. Ecklund asserted that the enforcement provision is problematic because it authorizes people to present tort claims, despite having no injury to do so.
Moreover, Ecklund argued that the law violates the First Amendment rights of individuals who seek to donate money to abortion providers and resource assistance since someone donating money could be construed as “aiding and abetting”. She asserts her conclusion is supported by the vague nature of what is considered aid.
Attorney for Texas Right to Life, Andrew Stephens argued that the arguments made by Ecklund and Murray were not supported by constitutional or case law.
"Aiding and abetting is a term well known in a criminal law context... if the term is unconstitutionally vague then every accomplice liability statute in Texas would be unconstitutional and that just can't be the case," said Stephens.
Judge Peeples raised concerns over the implications of upholding the controversial law. He reflected that the same enforcement mechanism that has evaded judicial review and allowed the law to go into effect could be utilized as a “procedural weapon” for the state to limit activities it does not approve of.
“I am just wondering if Pandora’s box is getting ready to be opened,” said Peeples
On Nov. 1, arguments were heard before the United States Supreme Court in a case against Texas brought by abortion provider Whole Woman's Health and the U.S. Department of Justice. Justice Brett Kavanaugh shared similar sentiments to those Judge Peeples had in the state cases. Kavanaugh proposed a hypothetical scenario where an individual who sells an AR-15 could be sued by anyone for a million dollars.
With arguments being submitted in the federal case, the Supreme Court is expected to release its ruling earlier than other cases before the court since the Texas case is an emergency motion.
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