Texas lawmakers have sent Gov. Greg Abbott a bill that would allow anyone in the state to sue over an abortion performed past six weeks—essentially turning right-to-lifers into courthouse vigilantes.
The law is a twist on the increasingly popular “heartbeat” laws that ban abortions past the date that a heartbeat can be detected—usually around six weeks gestation. (Experts say most embryos do not have a heart at this point, and that the technology is likely picking up an electric signal flutter.) Nine states have passed such six-week bans since 2013; all have been challenged in court and have yet to go into effect.
What differentiates Texas’ bill—and what some lawmakers hope will make it more effective—is the ability for private individuals to sue to enforce it. Under the law, any person who believes that an abortion occurred after a fetal heartbeat can be detected can sue—for minimum suggested damages of $10,000. And they can sue any number of people: the abortion provider, an abortion fund that helped pay for it, even a friend or family member who drove the woman to the clinic.
“It’s unprecedented, there's no question,” Amy Hagstrom-Miller, CEO of Texas-based abortion clinic Whole Woman’s Health, told The Daily Beast. “The idea that just anybody should be able to police a highly trained physician and their staff—that any Joe on the street can make that claim—is just totally shocking."
More than 200 physicians and almost 400 lawyers sent letters to the legislature this month pleading with them not to pass the bill, claiming it contradicts the state constitution and would have a “chilling effect” on a wide swath of medical professionals. Religious leaders held their own press conference at the state capitol to protest it.
But the bill sailed through the state House last week, with every Republican representative and one Democrat voting in its favor. (Almost every Republican in the Senate is either an author or sponsor of the bill.) And Gov. Greg Abbott has signaled he will sign it as soon as it reaches his desk.
In a press release last week, Texas Right to Life said the bill would “further bolster the ultimate goal of ending all elective abortion.”
“After the battle leaves the Texas Capitol, the next stop is the courthouse,” the group said.
Rebecca Parma, a legislative assistant for Texas Right to Life, told The Daily Beast the bill is meant largely as a deterrent, and that lawsuits would be filed only if someone is in violation of the law. But Hagstrom-Miller has no doubt that abortion opponents would jump at the opportunity to take matters into their own hands. In many ways, she said, they already have.
In 2011, after Hagstrom-Miller made an appearance on The Rachel Maddow Show, a prominent anti-abortion group started sending undercover agents to her clinics and filing complaints with every regulatory agency they could find. At one point, Hagstrom-Miller even had to consent to nurses searching through the clinic’s trash. During the pandemic, she said, anti-abortion protesters deluged the clinics with complaints about improper PPE use and social distancing.
The result, she said, is that abortion providers in Texas are “constantly on edge.”
“This is not abstract to me,” she said of the bill. “I’ve experienced this kind of use of the regulatory system and now they're going to get carte blanche to use the legal system.”
Though the bill does not permit lawsuits against the abortion recipient—focusing instead on those who “aid and abet” the procedure—advocates say it could still have a devastating effect on patients.
Dyana Limon-Mercado, executive director of Planned Parenthood Texas Votes, told The Daily Beast about an abortion she received years ago while she was in an abusive relationship. She discovered she was pregnant while trying to leave her partner, she says, and went to her parents for support. Her partner wanted her to continue the pregnancy—in order to secure further control over her, she claims—and he continued to harass both Limon-Mercado and her mother for months after she left.
“Had he had other options to inflict harm and harassment on us, he absolutely would have,” she told The Daily Beast. “These aren't theoretical situations.”
In fact, some men have already attempted to sue over abortions performed on their ex-partners. Last year, a man in Alabama attempted to sue the clinic where he believed his teenage girlfriend legally obtained abortion pills. A probate judge allowed the man, Ryan Magers, to sue on behalf of the aborted fetus’ estate, but a circuit court judge dismissed the case, noting that Magers did not assert any unlawful conduct on the part of his ex-girlfriend or the clinic. (The U.S. Supreme Court has already struck down laws requiring women to obtain permission from their partners for abortions.)
“He may deeply, emotionally, fervently wish that his girlfriend had accepted his pleas to not have an abortion, but she didn’t,” Lucinda Finley, a professor at the University at Buffalo School of Law, told The Daily Beast at the time. “And U.S. constitutional law says it’s her decision, not his.”
Experts say Texas’ law could be more difficult to challenge in court than others. Usually, opponents of abortion restrictions sue the state to block and eventually overturn them. (The U.S. Supreme Court overturned an earlier Texas abortion restriction in 2016 after advocates sued the state health commissioner.) But in this case, it is private citizens, not the state, tasked with enforcing the law, which could make it more difficult to challenge.
Mary Ziegler, an abortion rights historian and professor at Florida State University College of Law, said the bill is the continuation of a 1990s-era strategy to “sue abortion providers out of existence.” In the last decade, she said, abortion foes pivoted away from that strategy and towards passing extreme abortion laws that could pose a constitutional challenge to Roe v Wade. But so far, none of these laws have succeeded in overturning the historic 1973 decision making abortion legal across the country—and that legal fight has gotten costly.
“Even earlier this year, states that were passing six-weeks bans [were] being asked questions about ‘Ok, who’s going to pay for this?” Ziegler said.
The bill in front of the Texas legislature, she suggested, is a way for Republican lawmakers to “have their cake and eat it too.”
“It’s designed to basically be a heartbeat bill without exposing the state to the kind of legal fees and expenses that we’ve seen other states have to pay when they lose lawsuits about this,” Ziegler said. “Texas is trying to find a way to basically outsource its six-week ban.”
Despite the challenges, Limon-Mercado said Planned Parenthood and the ACLU are working together on legal strategies should the bill be signed into law.
“Planned Parenthood has been providing care in Texas for over 80 years,” she said. “We have a base of a million supporters and growing across the state.”
“All of these attacks are unfortunate, they put abortion access further out of reach, they have a real impact on peoples’ lives,” she added. “But at the end of the day, every time the opposition attacks the right to access, our movement grows stronger.”