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The Story

The U.S. Supreme Court has refused, for now, to intervene in a Texas law that would ban nearly all abortions in the state—and allows anyone in the U.S. to enforce it.

The Background

In July, the Texas state legislature passed the Texas Heartbeat Act, a law that bans abortion after the point where a heartbeat can be detected, which can be as early as six to seven weeks after conception.

Physicians in Texas are required by the law to test for a heartbeat, and are forbidden from knowingly performing or inducing an abortion on a pregnant woman if they detect a fetal heartbeat.

Fetal heartbeat laws aren’t new. But this is the first that has not been blocked by the courts. Similar laws have passed in four other states (Arkansas, Iowa, Kentucky, and North Dakota), but all were blocked before going into effect. Fetal heartbeat laws have also failed to pass in a dozen states and have been proposed or re-proposed in 13 states. A federal Heartbeat Protection Act was even proposed in Congress in 2017, though it never made it out of committee.

That it was not blocked would be noteworthy enough. But the law contains a unique enforcement feature: it prohibits enforcement of the law by government officials, and relies on private citizens to enforce it through civil litigation.

The way the law works is that any person—even someone who does not live in Texas—can bring a civil lawsuit against:

  1. any person who performs or induces an abortion in violation of this law;
  2. any person who knowingly engages in conduct that aids or abets the performance or inducement of an abortion;
  3. any person who pays for or provides reimbursement for the costs of an abortion through insurance or otherwise.

The lawsuit can be brought regardless of whether the person who aided in the abortion was aware of violating this law. The court is directed to force the defendant to pay costs and attorney’s fees, pay statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced, and award injunctive relief sufficient to prevent the defendant from violating this law or engaging in acts that aid or abet violations of this law.

“The Texas Heartbeat Act is novel in approach, allowing for citizens to hold abortionists accountable through private lawsuits,” said Rebecca Parma, a senior legislative associate with Texas Right to Life. “No heartbeat law passed by another state has taken this strategy. Additionally, the bill does not punish women who obtain abortions.”

Because the Supreme Court did not block the law, it went into effect August 31.

Why It Matters

Despite the rhetoric by pro-abortion activists, this Texas law doesn’t overturn Roe v. Wade. But it does show what pro-life legislation might look like in a post-Roe America.

Next year, the Supreme Court will issue a ruling in Dobbs v. Jackson Women’s Health Organization, a case that—as TGC explained in May—might be the death knell of Roe v. Wade. The court wouldn’t even have to directly overturn Roe to have a profound effect. A ruling that merely says prohibitions on abortion prior to viability (the stage of development at which an unborn child is capable of living, under normal conditions, outside the uterus) are constitutional would undermine almost all existing legal precedents on abortion. Removing the viability standard would allow future pre-viability prohibitions—such as heartbeat legislation—to withstand challenges in federal court.

But by not blocking the new Texas law before the Dobbs decision, the court has allowed the state to conduct a grand experiment. Abortion clinics and abortion providers in Texas will likely be deluged with lawsuits, forcing them to reconsider their business model. The abortion providers challenging the law have already said that it will bar at least 85 percent of abortions in the state and will likely cause many abortion clinics to close. It will also force others—whether the person driving a woman to have an abortion or an abortion hotline staffer—from aiding the killing an unborn child.

There are many people who were willing to “aid or abet the performance or inducement of an abortion” when it posed no risk to them. But now that they risk being held financially accountable for their actions, they are likely to reconsider.

While it is still unclear what lasting effects this legal experiment will have, for now we can be grateful that there will likely be a few thousand babies in Texas whose lives have been saved by this innovative legislation.

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