The unusual lawsuit pits perennial plaintiff Whole Woman’s Health and fellow abortion providers and funds from across the state against the Texas Medical Board, the Texas Health and Human Services Commission, the entire Texas court system, and one individual man: Mark Lee Dickson, founder of the “Sanctuary Cities for the Unborn Initiative.”
It follows an equally unique law. Senate Bill (SB) 8, dubbed the Texas Heartbeat Act, passed the state legislature just two months ago and is set to take effect on September 1. It bans abortions after a pulse can be detected in the womb. While several other states have passed heartbeat laws, the Texas Heartbeat Act is the only one that uses private lawsuits instead of government action for enforcement. Any citizen can sue anybody in Texas that procures, performs, or aids an abortion, though the abortion patient herself cannot be sued.
The plaintiffs have asked for an injunction to stop Texas judges and clerks from letting these lawsuits go forth and forbid government agencies from enforcing SB 8, “including by applying [it] as a basis for enforcement of laws or regulations in their charge.”
The injunction would also stop Dickson and “his agents, servants, employees, attorneys, and any persons in active concert or participation with him, from enforcing S.B. 8 in any way.”
In the complaint, the abortion groups say letting the law stand could pave the way for similar laws targeting other groups.
“States and localities across the country would have free rein to target federal rights they disfavor. Today it is abortion providers and those who assist them; tomorrow it might be gun buyers who face liability for every purchase,” the complaint reads.
“Same-sex couples could be sued by neighbors for obtaining a marriage license. And Black families could face lawsuits for enrolling their children in public schools. It is not hard to imagine how states and municipalities bent on defying federal law and the federal judiciary could override constitutional rights if S.B. 8 is permitted to take effect.”
Whole Woman’s Health has sued the state and its agencies on a number of occasions for laws that restrict abortions. It won a landmark victory in the Supreme Court case Whole Woman’s Health v. Hellerstedt, ending enforcement of a law that required abortion doctors to have admitting privileges at nearby hospitals. It also sued the state over a ban on dismemberment abortions and awaits a decision at the Fifth Circuit Court of Appeals, where this lawsuit would go if appealed.
Thanks to the law’s strange enforcement mechanism, relevant Fifth Circuit rulings offer conflicting predictions of the case’s outcome.
The plaintiffs claim a 2020 ruling in Jackson Women’s Health Org v. Dobbs dooms pre-viability abortion bans at the Fifth Circuit. The Jackson ruling dovetails with ample Supreme Court precedent.
However, they also face a formidable obstacle: Okpalobi v. Foster, another Fifth Circuit ruling that upheld a Louisiana law letting women sue their abortion providers. The Okpalobi decision saved the Lubbock ordinance outlawing abortion — which works almost identically to the Texas Heartbeat Act — in a federal district case last month since the judge found that the City of Lubbock could not be sued for injuries technically inflicted by citizen lawsuits.
If Whole Woman’s Health and its allies prevail at district court, the Fifth Circuit may rule against them for lack of standing.
Dickson pioneered the civil-enforcement ordinances in Lubbock and elsewhere that preceded the Texas Heartbeat Act, but that’s not why the plaintiffs named him in the suit. Dickson is a defendant because he publicly said he would sue Planned Parenthood under the Lubbock abortion ban if the company performed abortions in town after the ordinance’s effective date. As a result, the plaintiffs claim he poses a credible threat of enforcement through lawsuits authorized under the Texas Heartbeat Act.
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