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Two months after Gov. Greg Abbott signed a law banning abortion as early as six weeks, more than 20 abortion providers responded with a lawsuit against top Texas officials aimed at stopping one of the country’s strictest abortion measures to date.
The suit was filed Tuesday in the U.S. District Court for the Western District of Texas.
Known as the “heartbeat bill,” Senate Bill 8 was heavily criticized because it limits abortion to two weeks after a missed menstrual cycle, a time when some women don’t yet know they’re pregnant. It aims to ban abortion after a fetal heartbeat has been detected, which is considered a misnomer as a fetus doesn’t possess a heart at six weeks’ gestation.
Around 85% of those who obtain abortions in Texas are at least six weeks into their pregnancy, according to a press release from the Whole Woman’s Health Alliance, a lead plaintiff in the suit.
“We've beaten back these attacks before. We can and we will do it again,” Amy Hagstrom Miller, executive director of Whole Woman's Health, said at a press conference. “These are dark days, and it's easy to feel like the extremists in the Texas Legislature are running the table.”
A particularly controversial provision of the law allows private citizens to sue abortion providers and others who help someone get an abortion after six weeks.
Republican legislators removed responsibility for enforcement from state officials; instead, the law allows any Texan to sue providers they think are not complying with state abortion laws, thus pushing enforcement to the civil court system. This is intended to make the bill harder to block in courts.
Marc Hearron, senior counsel for the Center for Reproductive Rights and lead attorney on the suit, said this provision could produce “endless lawsuits,” leave abortion clinics vulnerable to harassment and possible closure, intimidate pregnant women and leave them with fewer avenues of help.
“It allows complete strangers, anti-abortion activists, to sue and interfere with the patient's decision,” Hearron said. “Those people may try to essentially hijack the courts for their ideological agenda.”
Citizens who file such suits would not need to have a connection to an abortion provider or a person seeking an abortion or even reside in Texas. Those who win lawsuits would be awarded a minimum of $10,000 in damages, as well as attorney’s fees.
This isn’t the first time a private-citizen suit provision has been included in a Texas abortion law.
It was first tested in Lubbock, with a voter-approved city ordinance that outlaws abortions and empowers “the unborn child’s mother, father, grandparents, siblings and half-siblings” to sue for anyone who helps another person get an abortion. A federal judge dismissed a lawsuit seeking to overturn the ordinance last month, finding that Planned Parenthood of Greater Texas, the plaintiff, did not have standing to sue the city.
Hearron said his organization hopes to overcome that obstacle in the suit against the state law by naming state officials as defendants. Eight state officials were sued in the new lawsuit, including Attorney General Ken Paxton, Texas Board of Nursing Executive Director Katherine A. Thomas, and Texas Health and Human Services Commission Executive Commissioner Cecile Erwin Young.
Plaintiffs’ attorneys said they named officials who are not charged with directly enforcing Senate Bill 8 but still have authority to enforce related laws.
“If this is not blocked, if this is successful, it would set a truly dangerous precedent, because states could eviscerate their own citizens' federal constitutional rights by creating a private lawsuit to do what their own officials couldn't do,” Hearron said.
Legal experts have said this provision is a deviation from how the law normally works. David S. Cohen, a law professor at Drexel University’s Thomas R. Kline School of Law, said allowing private citizens to sue is a “mockery of the legal system,” which typically requires the person suing to have sustained a harm, as the basis of the suit.
“It's an extreme departure from current law that someone [doesn’t have] to be connected to a problem in order to sue,” Cohen said in March.
John Seago, legislative director for Texas Right to Life, said he is confident that Senate Bill 8 will be upheld.
"We still have the utmost confidence in the innovative legal strategy and carefully drafted nature of SB 8,” Seago said in a statement. “We fully believe this pro-life priority will ultimately be upheld and save countless preborn lives."
Similar “heartbeat” bills have been passed by other states, but none have gone into effect. Many have been blocked in state courts.
While the Texas law includes an exception for abortion in case of medical emergencies, there are no exemptions for cases of rape or incest.
Dr. Bhavik Kumar, an abortion service provider and one of the plantiffs, said during the press conference that such restrictions disproportionately impact people of color, minors, low-income people and undocumented individuals.
“I can think of few things more unethical than denying a patient care that I could safely provide, knowingly they may seek unsafe alternatives,” Kumar said. “This is why I trained in providing abortion care and why I chose to do this work in Texas, where access is already abysmal.”
The law is set to take effect on Sept. 1. During the regular legislative session, nearly all Republican lawmakers signed onto Senate Bill 8, as authors or sponsors of the measure.
Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
Correction, July 13, 2021: A previous version of this story misspelled the name of Whole Woman’s Health’s executive director. She is Amy Hagstrom Miller, not Amy Hagstorm Miller.