Yet despite the new availability of direct enforcement, some pro-life politicians and activists are hoping to expand the lawsuit-based method of enforcement that kept the Texas Heartbeat Act standing well before the end of Roe v. Wade.
Fresh Activity in Heartbeat Act Lawsuits
After a “Sisyphean” pattern of passing marginal abortion restrictions every two years only to see them blocked by courts, Texas Republicans began searching for new ideas ahead of the 2021 legislature. Sympathetic legal scholars saw no end to Roe in sight. Since the precedent set by Roe forbade governments from burdening access to pre-viability abortions, the Texas legislature passed a heartbeat law enforced by citizens instead.
Senate Bill (SB) 8, formally entitled the Texas Heartbeat Act, allows any citizen to sue anybody that performs or aids a post-heartbeat abortion in Texas. It repeatedly withstood review at the U.S. Supreme Court and remains in force alongside the more direct ban on elective abortions now effective in Texas.
Since it first took effect last September, the law has shown strength mostly as a preventative measure. Only a handful of cases under SB 8 have ever been filed.
Many of these cases are seeing fresh activity after the Dobbs v. Jackson decision.
After months of silence, hearings will proceed in the next two weeks to consider deposing various organization leaders for aiding illegal abortions. A citizen named Sadie Weldon has filed a petition in Jack County to depose Neesha Davé of Lilith Fund that will be considered in a hearing on August 5, and a Denton County woman named Ashley Maxwell has initiated the same process against Texas Equal Access Fund director Kamyon Conner in Denton County with a hearing scheduled for August 9.
While these petitions were originally filed in January and February, respectively, a new petition was also filed on the same grounds against Sidley Austin LLP on July 15.
All three cases are being aided by Jonathan Mitchell, former solicitor general of Texas and architect of the civil enforcement mechanism at the center of SB 8.
Civil Enforcement Likely to Grow in 2023
Meanwhile, the U.S. Supreme Court restored effect to the old Texas abortion ban and triggered a new one when it overturned Roe.
But for some Republicans, these laws don’t go far enough.
Members of the Texas Freedom Caucus have promised to file legislation that would effectively apply SB 8’s enforcement mechanism to the entire pregnancy, not just from the development of a heartbeat. In other words, the proposed bill would let any citizen sue anybody for performing an elective abortion.
Furthermore, the Freedom Caucus letter says this provision would apply to the abortion of any unborn Texas resident, even if the abortion were to take place in another state.
Support for new civil enforcement measures remains strong among activists as well as politicians. The leader of Texas Right to Life, a pro-life lobbying group that works closely with some legislators, said the organization sees a continued need for civil liability alongside direct penalties.
“What we’ve been seeing over the last year are district attorneys announcing that they refuse to prosecute if they have evidence that illegal abortion has occurred in their jurisdiction. And so, we have a running list of district attorneys that are announcing that they’re trying to make their county a kind of safe haven for abortionists and the abortion industry,” Seago said.
“If we expand civil liability, that’s a better deterrent for those abortionists that even if their district attorney is going to give them cover, they won’t feel safe breaking the law. They’ll know that any potential client who walks through their door could actually be a pro-lifer looking for evidence that there’s criminal activity happening and then act on that and actually go to the court.”
Since the Texas legislature won’t convene for several months, the Texas Freedom Caucus has not filed an official bill yet. However, Texas would not be the first state to create a private right of action authorizing lawsuits against elective abortions during any gestational period.
Oklahoma passed an elective abortion ban enforced by lawsuits just this year, inspired by the Texas Heartbeat Act. The author of the bill, Oklahoma state Sen. Julie Daniels, said she and other pro-life politicians wanted a civil enforcement bill in case Roe was ultimately upheld but still feels the state law is “worthwhile” even after the end of Roe.
“We thought the civil cause of action could be very important to have since it was allowed to stand in Texas,” Daniels said.
“But, having flexibility in options in a post-Roe world could be very useful, just as having two different criminal statutes from which a prosecutor might use his or her discretion to proceed would be important. So, my position is that we shouldn’t do away with anything until we’re absolutely certain that there isn’t a scenario in which we would want to have it.”
While Texas was the first state to enforce an abortion law with a private right of action, the idea was first tried at the local level, where it is equally likely to continue growing.
Local abortion bans are a Texas-born experiment that Mitchell also helped pioneer before the state drafted SB 8. As the idea develops from town to town, the bans have become increasingly more aggressive and comprehensive than state law. The latest versions make abortifacient drugs contraband and already outlaw the abortion of unborn city residents regardless of where those abortions might take place.
Since the idea began in Waskom in 2019, the bans have included provisions authorizing direct municipal penalties in the event that the Supreme Court overturns Roe.
However, the activist behind these bans, White Oak native Mark Lee Dickson, says the civil enforcement mechanism remains crucial since local authorities may decline to punish abortion crimes.
“We just saw Austin, Texas say they’re not going to enforce any abortion ban, essentially. They’re going to put it in the lowest spot on the totem pole. They’re not rushing towards this,” Dickson said in a June interview, referring to a resolution called the GRACE Act that Austin has since enacted.
“So what’s going to happen in cities where the DAs or the mayor and council or the police department just chooses not to enforce laws on the books?”
‘A Complete and Utter Reversal’
By the time Sen. Bryan Hughes (R-Mineola) introduced SB 8 in 2021, Texas Republicans had established a lasting legacy of attempts to curb lawsuit opportunities.
In the context of this trend, SB 8 was a major anomaly, according to University of Texas professor Charles Silver.
“It’s a complete and utter reversal. And it’s not designed to do anything that a tort reform bill would have done. The argument for tort reform was that there’s a burden on the courts. Too many lawsuits burden the courts, and too many lawsuits drive up insurance prices for Texas businesses, and too many lawsuits are driving doctors out of the state,” Silver said.
“I mean, these are all the arguments that get made, but none of those arguments supports doing what they’re doing in Senate Bill 8. I mean, absolutely not. There are no lawsuits of this type now — or, there were no lawsuits of this type then. There are some, I gather, now, and there will be more. The Texas Attorney General has announced he’s going to be very aggressive. So they’re going to be filling the courts with lawsuits, apparently. It’s completely out of sync with all of their other anti-lawsuit rhetoric and actions.”
While SB 8 forbids government officials from enforcing it, a different law passed last year known as the Human Life Protection Act or “trigger ban” charges the attorney general with suing anybody that performs or attempts an elective abortion. It takes effect in less than a month.
None of the state laws or local ordinances allow any penalties or lawsuits against the mother herself for seeking or obtaining an abortion. Every state law allows procedures meant to evacuate miscarriages or terminate life-threatening pregnancies.
Hughes could not be reached for comment.
An Austin trial attorney named Adam Loewy observed that Texas Republicans supported a tort reform bill to restrict causes of action against trucking companies during the same session when SB 8 was passed.
“So, on the one hand, you have a long history of that from the GOP, but on the other hand, you had Republican legislators create a private cause of action which allows Texans to sue abortion providers,” Loewy said.
In defense of SB 8, Hughes has argued that the unique circumstance of abortion and Roe required creative legislating to achieve justice for the unborn child.
“Many crimes have a civil analog. Someone who commits a criminal assault, for instance, may be sued in civil court for assault and battery (recall the civil O.J. Simpson trial). Someone who steals property from another may be pursued for the civil tort of conversion. In almost every case, the person wronged, and therefore the person who brings the claim, is the plaintiff,” Hughes wrote.
“In the case of abortion, the wronged party has been extinguished. If we can’t depend on criminal enforcement, even if Roe is overturned, and the party who directly suffered harm cannot bring a claim, what’s left? Someone else must enforce the law.”
In any event, with unchanged leadership at the helm of Texas politics and continued zeal among politicians and activists, private causes of action against abortion providers and supporters will likely proliferate at the state and local level in the next year.
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