Texas Gov. Greg Abbott signed a bill on Wednesday that would ban abortion before many women even know they’re pregnant, and allow nearly any private citizen to sue abortion providers — or anyone who helps a woman terminate her pregnancy.
The “heartbeat ban” would prohibit abortions after a fetal heartbeat can be detected, as early as six weeks into a pregnancy, and includes exemptions for medical emergencies but not cases of rape or incest. Abortion rights advocates vowed to challenge the law in court, arguing that it would ban abortions as early as two weeks after a missed menstrual cycle, an impossibly early date that effectively amounts to full abortion prohibition, said Dyana Limon-Mercado, the executive director of Planned Parenthood Texas Votes.
“When you factor in the time it takes to confirm a pregnancy, consider your options and make a decision, schedule an appointment and comply with all the restrictions politicians have already put in place for patients and providers, a six-week ban essentially bans abortion outright,” she told the Texas Tribune.
Other states have passed “heartbeat” bills, but they have been blocked by courts for infringing on abortion rights upheld by the Supreme Court in Roe v. Wade. The Supreme Court this week said it would review Mississippi’s abortion ban, which bans the procedure after 15 weeks, after it was blocked by lower courts. But the Texas bill has a novel enforcement mechanism that its Republican supporters believe could help it withstand legal challenges.
Instead of the government enforcing the ban, the bill will allow any private citizen who is not a government official to sue abortion providers, or anyone who helped someone get an abortion after a fetal heartbeat is detected — including family members, rape crisis counselors, and medical professionals — even if they are not connected to the patient or the provider.
“This law is so broadly written it could target not just abortion clinics and staff but anyone that volunteers or donates to an abortion fund or activist organization like ours,” Aimee Arrambide, executive director of reproductive rights advocacy group Avow Texas, told The Guardian. “Domestic violence and rape crisis counselors who offer guidance, family members who lend money to abortion patients, a friend who gives a ride to an appointment, or even someone that provides an address to a clinic could also face lawsuits.”
People who sue would be entitled to a $10,000 award and attorney’s fees if they win.
“Every citizen is now a private attorney general,” Josh Blackman, a constitutional law professor at South Texas College of Law, told the Tribune. “You can have random people who are against abortion start suing tomorrow.”
The law would take effect in September.
The law does not allow rapists to sue but advocates say that the language in the bill would not apply to those who are not convicted, much less reported. More than 90 percent of rapes in Texas are not reported to the police, according to a 2020 report prepared for the Texas legislature.
“This bill empowers rapists and abusers, and lawyers and trolls who want to abuse and clog up our courts,” said state Rep. Donna Howard, D-Austin, said in a floor speech. “And this forced pregnancy act will drive women back into the [pre-Roe] shadows out of fear of harassment through lawsuits that anyone in this country can file.”
The law also allows people who sue to file lawsuits in their home districts and prevent the case from being moved to a different court. Legal experts told the Tribune that this could make it more costly and difficult for abortion providers to fight lawsuits because the court may be hundreds of miles away and abortion activists can shop for districts they think will be more sympathetic.
The bill’s supporters argue that since there is no state official responsible for enforcing the law, there is no one for abortion providers to sue to challenge the law.
“It’s a very unique law and it’s a very clever law,” Blackman told the Tribune. “Planned Parenthood can’t go to court and sue Attorney General [Ken] Paxton like they usually would because he has no role in enforcing the statute. They have to basically sit and wait to be sued.”
But abortion rights advocates said they plan to fight the law in court regardless.
Elisabeth Smith, an attorney for the Center for Reproductive Rights, told the outlet that reproductive health groups are “not going to let this six-week ban go unchallenged.”
Amy Hagstrom Miller, who heads the abortion provider Whole Woman’s Health, expressed concerns that the bill would allow anti-abortion activists to harass providers, noting that her clinics have already been hit with false reports alleging water heater permit violations, social distancing violations, and violations of other regulations.
“False reports disrupt health care services and this culture of threats and accusations is designed to intimidate providers,” she told the Tribune, adding that about 90 percent of women who come to her clinics are more than six weeks into their pregnancy.
Abbott justified the ban on religious grounds and vowed that the bill would ensure that the “life of every unborn child who has a heartbeat will be saved from the ravages of abortion.”
“Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion,” he said.
Texas Right to Life called the signing a “landmark victory” but said even more comprehensive bills are still pending in the legislature.
Abortion in the state was already banned after 20 weeks and medically-induced abortions are banned after 10 weeks. State law also requires providers to perform an ultrasound at least 24 hours before an abortion and provide information on medical risks and alternatives.
South Carolina, Oklahoma, and Idaho have all passed heartbeat bans this year and Arkansas and Oklahoma approved near-total abortion bans, though none have yet gone into effect and many have been blocked.
State Sen. Bryan Hughes, who sponsored the legislation, said the enforcement mechanism differentiates Texas’ bill from other states.
“Based on what we read in court opinions from other abortion cases, and other federal cases, we believe this bill — because of the private civil enforcement, primarily, and a few other things — is drafted differently than those other heartbeat bills that are pending, that are awaiting court ruling today,” he told CNN.
More than 350 Texas attorneys condemned the bill in a letter to lawmakers, arguing that the enforcement mechanism undermines the state’s constitution and the “rules and tenets of our civil legal system.”
“The bill is a blatantly unconstitutional attempt by Texas Republican leadership to misuse civil courts to restrict women’s access to healthcare, and to allow anti-choice activists to target and penalize healthcare providers,” Texas attorney Christian Menefee told The Guardian. “This bill is morally reprehensible and legally nonsense.”
Drucilla Tigner of the ACLU of Texas called the law “the most extreme abortion ban in the country.”
“Not only does this ban violate more than half a century of Supreme Court case law, it paves the way for anti-choice extremists to use our court system to go after anyone who performs abortions or considers supporting a person that has one,” Tigner said in a statement. “But make no mistake, abortion is both legal in Texas and supported by the majority of Texans. The governor’s swipe of a pen can’t change the Constitution.”