The Heartbeat Act, a bill in the Texas legislature that took effect yesterday, bans the abortion of unborn children with a detectable pulse. Cardiac activity normally develops around six weeks into pregnancy.
Led by abortion provider Whole Woman’s Health, a number of abortion facilities and counselors sued to stop enforcement of the act in July. The unusual lawsuit matched an unprecedented law: instead of using government enforcement, the Heartbeat Act lets citizens sue anyone, other than the mother herself, that violates it.
In turn, the abortion provider plaintiffs sued the entire Texas court system along with the state agencies that regulate employees of abortion facilities. The defendants made motions to dismiss the case which the judge declined. Afterward, they appealed to the Fifth Circuit Court of Appeals, and the hearing that would have decided a preliminary injunction to stop the law was canceled. The plaintiffs asked the U.S. Supreme Court to stop enforcement of the law but were ignored in a 5 to 4 decision to reject the case late last night.
“[F]ederal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” the collected opinions of the court explain.
“The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.”
Lawmakers crafted the bill’s unique structure with this kind of legal challenge in mind. Texas has a history of passing laws to restrict abortion that courts later overturn under jurisprudence related to the Supreme Court case Planned Parenthood v. Casey, which established the undue burden standard. Under this standard, governments cannot impose an undue burden on women seeking abortions.
Through the Heartbeat Act, citizens, not the government, restrict abortion.
The Whole Woman’s Health lawsuit is still proceeding at the Fifth Circuit. However, circuit precedent may be an obstacle.
Louisiana passed a law two decades ago that let women sue their abortion providers, leading to a lawsuit between abortion facilities and the state. The case, Okpalobi v. Foster, ended without a clear judgment on the merits since the Fifth Circuit dismissed it for lack of standing. Because the injuries that the abortion facilities claimed to have suffered came from citizens rather than the government, there was no actual controversy in their lawsuit against the state of Louisana, the court ruled.
This precedent saved a local ordinance very similar to the Heartbeat Act in Lubbock. The citizens of Lubbock voted overwhelmingly in May to pass an ordinance banning abortion entirely in town limits, adding them to the state’s growing list of “Sanctuary Cities for the Unborn.” The ordinance allows the city to punish violators if certain strict legal thresholds are met, but civil lawsuits are its most immediate enforcement mechanism. Planned Parenthood sued the city but had their case dismissed since, as in Okpalobi, the city had not directly injured the company.
The Supreme Court decided 5 to 4 to deny the case. Justices Clarence Thomas, Samuel Alito, Neal Gorsuch, Brett Kavanaugh, and Amy Coney Barrett formed the majority. Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.
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