WASHINGTON — Texas’s new 6-week abortion ban provides a lucrative and risk-free financial incentive for any private citizen to haul doctors, abortion rights advocates, and anyone else suspected of helping people get access to abortion into court.
SB 8, which went into effect Wednesday after the US Supreme Court did not take action to stop it, outsources enforcement of what’s now the most restrictive abortion law in the country. The 6-week ban can’t be enforced by government actors, only through civil lawsuits brought by private individuals. It shields people who bring these cases from being hit with legal costs even if they lose. Defendants, on the other hand, must pay the legal bills of the people suing them if they lose, in addition to a penalty of at least $10,000 per abortion performed.
It’s a novel approach to anti-abortion legislating that managed to avoid the judicial guardrails that stopped similar early-term pregnancy bans from taking effect in other states. It’s possible that the US Supreme Court or lower court judges could still step in to block it, but barring some future court action, SB 8 is the law in Texas. Efforts from anti-abortion organizations and activists to solicit tips and build cases over possible violations are already underway.
This summer the anti-abortion group Texas Right to Life launched a website where tipsters can anonymously report claims of illegal abortions. The site also allows people to volunteer to launch cases as plaintiffs, essentially matching the people providing tips with the people willing to take them to court. Because there is no limit on who can sue under the Texas law, anyone can be the face of a lawsuit, even if they have no firsthand knowledge of the abortion they’re suing over.
“We want the abortion industry to know there is infrastructure in place to hold them accountable if they’re not going to follow the law,” said Texas Right to Life legislative director John Seago.
Seago said his organization has already heard from volunteers willing to back civil suits. It is a risk-free proposition. If they win, they are entitled to damages of a minimum of $10,000 plus their legal costs. If they lose, they cannot be ordered to pay the defendant’s legal fees. Seago said plaintiffs will still need to clear a high bar by convincing a judge there is enough evidence to move forward with a case.
The threat of being sued appears to have already worked, as abortion providers across the state announced they would comply with the law and stop performing abortions after 6 weeks of pregnancy.
“By far, this is the most significant pro-life victory since Roe v. Wade,” Seago said of SB 8.
Amy Hagstrom Miller, CEO of Whole Woman’s Health, which operates four clinics that provide abortion services in Texas, told reporters on a call Wednesday morning that anti-abortion protesters had been doing “surveillance” on their facility in Fort Worth on Tuesday. Miller said that as night fell and it became dark, protesters shined lights on the parking lot to track who was coming in and going out.
SB 8 prohibits physicians from performing an abortion in Texas once they can detect a fetal heartbeat, which usually happens around the 6th week of pregnancy. Abortion providers have estimated that roughly 85% to 90% of abortions that they perform in the state take place after week 6; many people don’t realize they’re pregnant at that point. The law includes an exception for medical emergencies, but not for situations that involve rape or incest.
Any private citizen can bring a civil lawsuit against someone they believe has performed an abortion in Texas after there’s a fetal heartbeat, or someone who “aids or abets” an abortion in the state that violates the 6-week ban — that could be someone who helps pay for an abortion or helps drive a pregnant person to a clinic, for instance. It also authorizes lawsuits against people who “intend” to perform an abortion or help facilitate one.
SB 8 does not allow lawsuits against a patient who receives an abortion. It also bars someone from filing suit over a particular abortion if they were responsible for impregnating the patient through rape, incest, or other criminal conduct, though most cases of rape and sexual assault go unreported.
The law gives would-be enforcers up to four years after the date of a supposed violation to go to court. SB 8 also restricts the legal defenses that abortion providers can raise if they are sued. They can’t, for instance, argue that a case should be dismissed because the law itself is unconstitutional.
It’s the first 6-week abortion ban to take effect since the Supreme Court’s landmark 1973 decision in Roe v. Wade. Citing decades of legal precedent interpreted as protecting the right to an abortion before a fetus is viable (meaning it could survive outside the womb), judges across the country previously blocked state laws that criminalized previability abortions — placing enforcement in the hands of prosecutors — or that imposed regulatory schemes enforced by health officials that made these procedures all but impossible to perform.
The unusual structure of SB 8 put the legal fight on a different path. The state of Texas wasn’t the defendant. Instead, abortion providers sued Mark Lee Dickson, an anti-abortion advocate who vowed to file claims once the law took effect; state judges and clerks who would preside over cases; and state medical authorities who would investigate and sanction doctors found to have violated the 6-week ban. Dickson is the director of Right to Life of East Texas, and the lawsuit cited numerous messages he’d posted on Facebook expressing his intent to sue providers.
A federal district judge in Austin rejected the defendants’ initial round of challenges to the lawsuit, and the defendants then took the case to the US Court of Appeals for the 5th Circuit. The 5th Circuit paused the district court proceedings before that judge had a chance to rule on the abortion providers’ request for an immediate injunction to stop the law from taking effect while the case was pending. The fight reached the US Supreme Court on Aug. 30. The justices didn’t take any action before the Sept. 1 start date.
Abortion providers and their lawyers are parsing the law to understand what exactly they’re allowed to do. Marc Hearron, a senior counsel at the Center for Reproductive Rights who is leading the legal fight against SB 8, told reporters on Wednesday that one of the law’s most “pernicious” elements is that it not only allows anyone to bring a suit, but opens the door to all sorts of interpretations of the law as grounds to bring a claim, even if they ultimately get dismissed in court.
For instance, Hearron said that the law applied to abortions performed in Texas and wouldn’t allow for a lawsuit against someone who drove a pregnant person across state lines or helped to finance the trip. But because SB 8 doesn’t penalize people for bringing claims that fail, he said, at a minimum, anti-abortion advocates could use the law to force doctors or other people who facilitate abortion access to go into court and deal with a potentially endless stream of allegations.
At least with an abortion ban enforced by government actors, like prosecutors or state health officials, there was some predictability in how they’d interpret a law and pursue legal action, Hearron said.
The day before SB 8 took effect, a state judge in Austin entered a temporary restraining order blocking Texas Right to Life from bringing claims under the law. But that order only applied to any future potential lawsuit against the group that had filed the challenge, the Bridge Collective, a nonprofit that provides abortion assistance in central Texas.
Joe Pojman, executive director of the anti-abortion group Texas Alliance for Life, said his organization is monitoring for signs of illegal abortions, including watching the Facebook pages of licensed abortion facilities in the state. But Pojman said they are not currently planning to launch any litigation and are waiting for the courts to weigh in.
“Civil enforcement has never, to this extent, been tried before,” he said. “This is new legal ground. We’re waiting to see how the federal courts will handle it.”