The Texas legislature passed the Heartbeat Act as Senate Bill (SB) 8 during this year’s regular session. Set to take effect September 1, the law bans abortions of unborn children with a detectable pulse. Cardiac activity normally develops around six weeks into a pregnancy.
While other states have passed heartbeat laws, Texas’ law is unique. Rather than using government enforcement, it lets citizens sue anybody that performs, aids, or abets a post-heartbeat abortion other than the mother herself.
“S.B. 8’s centerpiece is its private enforcement scheme, which empowers private citizens to bring civil actions against anyone who allegedly performs, or aids and abets in the performance of, a banned abortion,” as Judge Robert Pitman described the law in his order.
Whole Woman’s Health and Planned Parenthood joined a number of other abortion clinics, doctors, and counselors in a lawsuit against the state court system last month. Since the Heartbeat Act uses civil lawsuits instead of government action for immediate enforcement, the unusual complaint targets every judge and clerk in the Texas court system, several state agencies, and one citizen who the plaintiffs believe will participate in lawsuits to stop post-heartbeat abortions after the law takes effect.
All of these defendants filed motions to dismiss the case, generally arguing that they would not be responsible for whatever injuries the abortion providers might suffer due to the private lawsuits authorized by the law. Pitman disagreed and denied the motions.
State Agencies
The state agencies — specifically, the Texas Medical Board, the Texas Board of Nursing, the Texas Health and Human Services Commission, the Texas Board of Pharmacy, and Attorney General Ken Paxton — argued in their motion that the abortion providers lacked standing to sue them since the Heartbeat Act bars government officials from suing under the law.
“Plaintiffs allege that they will be injured by private lawsuits under SB 8. Of course, even if such an alleged injury could otherwise satisfy Article III (which the State Agency Defendants deny), it is neither traceable to the State Agency Defendants nor redressable through an injunction against them,” the agencies wrote.
“Possible lawsuits by private parties do not create standing to sue the State Agency Defendants… Plaintiffs have brazenly requested this Court to tell all Texas courts how to decide the cases before them. This Court should firmly decline to do so.”
Addressing these claims, Pitman noted that the agencies do have the ability to discipline their licensees, which can count as an injury.
“Because the Provider Plaintiffs provide abortions that will be banned once S.B. 8 takes effect, they will either have to violate SB 8 and await disciplinary actions against them by the [agencies] or cease to provide what they believe to be constitutionally-protected healthcare, causing harm to their patients,” Pitman wrote.
Texas Court System
The defendants representing the state court system made similar claims as the agencies. The plaintiffs tagged Austin Reeve Jackson and Penny Clarkston, a state judge and court clerk in Smith County, as class representatives in the case. Jackson and Clarkston both argued that they could not be sued for carrying out their judicial duties if someone were to sue under the Heartbeat Act in their court.
“Writ large, Plaintiffs ask this Court for unprecedented relief: to commandeer the entire Texas judiciary so that Plaintiffs will not face even a threat of a private lawsuit,” Clarkston wrote in her motion.
“Ms. Clarkston, by docketing a case, does not ‘enforce’ the statute and acts only in an adjudicatory capacity… A court clerk like Ms. Clarkston does not have the authority to reject petitions, even when the filing is frivolous, harassing, improper, malicious, or based on an unconstitutional statute.”
In response, Pitman said that tossing the case would leave no other option for the abortion providers to challenge the law’s constitutionality.
“This argument sidesteps the fact that if this Court were to dismiss the Judicial Defendants for lack of a case or controversy, Plaintiffs would have no avenue to challenge the constitutionality of S.B. 8 outside of an enforcement action brought against them under S.B. 8—an action Plaintiffs allege would violate their constitutional rights in the first place,” his order reads.
“Contrary to Clarkston’s position that upholding the Constitution would present a federalism issue, state officials are never absolved from violating the Constitution merely because their state-mandated duties require them to act in an unconstitutional manner.”
Like the state agencies, Jackson and Clarkston also partially pinned their hopes on a twenty-year-old case known as Okpalobi v. Foster over a Louisiana law that let women sue their abortion providers. When several abortion clinics sued the state of Louisana over the law, the Fifth Circuit Court of Appeals dismissed the case since the state did not actually inflict the injuries that the clinics claimed to suffer from lawsuits.
In other words, the court found that the private lawsuits, not the government, inflicted the actual harm that created the controversy. Therefore, the plaintiffs had no controversy with the state of Louisiana.
This ruling saved the City of Lubbock’s local abortion ban when Planned Parenthood sued to stop it earlier this year. Since the local ordinance uses private lawsuits like the Heartbeat Act and the Louisiana law at the center of Okpalobi, the judge found that precedent compelled him to toss the case.
Clarkston and Jackson said the same precedent should protect them in the Heartbeat Act suit, but Pitman was unconvinced.
“The Court once again notes that the Fifth Circuit has never stated that there is no proper defendant in challenges to anti-abortion laws that create private rights of action, but rather that the defendants named in previous lawsuits were not properly named due to their lack of enforcement power,” he wrote, engaging with Okpalobi and tangential rulings.
“The Court thus does not read these cases to say that Plaintiffs cannot name any state official whatsoever in their suit, as suggested by the Judicial Defendants here.”
Mark Lee Dickson
In addition to suing state agencies and courts, the abortion providers sued a pro-life activist named Mark Lee Dickson, who pioneered the local abortion bans in Lubbock and elsewhere. Since Dickson promised to sue violators of Lubbock’s ordinance after it took effect, the abortion providers claimed he would likely sue under the Heartbeat Act as well.
Dickson claimed the providers cannot treat him as a credible threat unless they plan to violate the Heartbeat Act.
“Yet the plaintiffs cannot establish standing to sue Mr. Dickson unless they intend to violate the statute after it takes effect; otherwise there is no way for Mr. Dickson to sue them,” his motion reads.
Furthermore, he argued that an injunction against himself alone would not remedy the same potential injury that the providers would face from the rest of the state’s citizens. Without this possibility for an adequate remedy from the court, Dickson claimed, the abortion providers lack standing.
“Senate Bill 8 allows anyone to sue a person that performs or aids or abets a post-heartbeat abortion, or that intends to engage in such conduct. And if Mr. Dickson is enjoined from suing, there are countless others that will sue to recover the $10,000 for each illegal abortion that the plaintiffs perform or assist,” his motion reads.
“An injunction that stops only Mr. Dickson from suing — while leaving the door open for every other person in the world to sue the plaintiffs for their violations of Senate Bill 8 — does not redress any injury that the plaintiffs are suffering on account of the statute.”
Pitman disagreed that the abortion providers must first break the Heartbeat Act to properly challenge it.
“Indeed, the Supreme Court has repeatedly stated that plaintiffs need not plead that they plan to violate a law to have standing to challenge its constitutionality,” Pitman wrote.
Future of the Case
Snce the structure of the Heartbeat Act is meant to let the state avoid responsibility for the restriction on abortion it imposes, a dismissal was the state’s best bet. Shortly after Pitman refused to dismiss the case, the defendants appealed to the Fifth Circuit Court of Appeals.
Pitman still has a hearing scheduled in three days on a preliminary injunction.
The hearing will only apply in the case against Dickson. After appealing to the Fifth Circuit, the government defendants convinced Pitman to stay the case and vacate the hearing while they proceed with the appeal. Since Dickson is the only defendant that lacks governmental immunity, his hearing will continue, meaning Pitman may still enjoin him from suing under the Heartbeat Act.
Relevant case law hints that the Fifth Circuit will likely uphold the Heartbeat Act if it accepts the appeal. It has a history of supporting pro-life laws that the U.S. Supreme Court later overturns, as in Whole Woman’s Health v. Hellerstedt. It also recently upheld Texas’ ban on dismemberment abortions. More substantially, the circuit’s precedent in Okpalobi v. Foster and related cases that followed signal favorability for laws that create private liability against abortion providers.
Correction: A previous version of this article wrongly attributed a quote by plaintiffs to Judge Pitman. We regret the error.
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