In a highly anticipated move, Texas abortion providers filed a federal lawsuit on Tuesday against the state’s draconian six-week abortion ban, Senate Bill 8 that would empower private citizens to enforce the law.
“The Texas legislature’s well-documented hostility to the rights of pregnant people has gone to a new extreme,” reads the lawsuit, filed by groups including Whole Woman’s Health and Planned Parenthood, along with abortion support fund groups, doctors, health clinic staff, and clergy members. “Senate Bill 8 flagrantly violates the constitutional rights of Texans seeking abortion and upends the rule of law in service of an anti-abortion agenda.”
The extreme anti-abortion law, which offers no exception for rape or incest, bars the procedure when embryonic cardiac activity is detected, which is around six weeks – before most women even know they are pregnant – amounting to a near-total ban. It also allows any private citizen, including anti-choice activists unrelated to the patient, the right to sue an abortion provider, rather than tasking the state with enforcement.
In fact, any person that “aids or abets” abortion care, such as a friend or family member that pays for abortion or a sexual assault counselor who calls a clinic on behalf of a patient, could be targeted, potentially opening the floodgates to harassing lawsuits that could push abortion clinics into forced closure.
Although abortion patients cannot be sued under SB8, any “abusive partner, controlling parent, or disapproving neighbor” could go after the patient’s doctor in court, the lawsuit notes. While those who sue can collect a minimum of $10,000 if they are successful, those unjustly sued cannot recover legal fees.
Courts have halted so-called “heartbeat” laws in a dozen other states, but the private enforcement provision in SB8 is the first of its kind in the US.
The law violates Texans’ constitutional right to privacy and liberty as established by Roe v Wade and the right to free speech and equal protection for abortion providers, the lawsuit claims.
“It is unthinkable that anti-abortion extremists could be allowed to stand in the way of people accessing essential health care,” said Melaney A Linton, president of Planned Parenthood Gulf Coast.
The GOP-dominated Texas legislature ushered through SB 8 earlier this year and the Republican governor Greg Abbott signed it into law in May. Pro-choice attorneys vowed to file suit against SB8 before it is scheduled to go into effect on 1 September. Plaintiffs are represented by several legal groups including the Center for Reproductive Rights (CRR), Planned Parenthood Federation of America, and the American Civil Liberties Union.
“We’ve never seen a law like this,” said Marc Hearron, lead attorney with CRR, during a press call on Tuesday. “This is what Texas politicians wanted when they passed this law: to turn anti-abortion extremists into vigilantes with the power to police clinics, staff, and their patient support systems. We have already seen the threats begin.”
Due to the unprecedented private cause of action clause in SB8, which seeks to largely shield the state from enforcement of the law, the suit takes aim at every state trial court judge and county clerk in Texas who would be called upon to enforce the ban, as well as the Texas Medical Board, Texas Board of Pharmacy, the Texas Board of Nursing, and the attorney general.
The suit also names Mark Lee Dickson, an anti-abortion activist with Right to Life of East Texas, as a defendant for his role in encouraging people to sue their local abortion providers under the law. Dickson helped spearhead the “sanctuary city for the unborn” movement, resulting in nearly two dozen Texas towns (as well as cities in Ohio and Nebraska) adopting local ordinances that ban abortion.
Similar to SB8, the local ordinances include a private enforcement provision, albeit far narrower in scope. In June, a federal judge dismissed a recent legal challenge to the ordinance in Lubbock (the most populous town to pass the local rule thus far), ruling that Planned Parenthood did not have standing to sue the city. As a result, the reproductive health clinic halted its abortion services.
A recent research brief from the Texas Policy Evaluation Project showed that SB8 would prevent the majority of pregnant people (8 in 10) in Texas from obtaining abortion care, and would disproportionately impact low-income people of color.
“If permitted to take effect, SB8 will create absolute chaos in Texas and irreparably harm Texans in need of abortion services,” the lawsuit reads.