After getting repeatedly thwarted by the courts, Texas tried something new.
After getting repeatedly thwarted by the courts, Texas tried something new.
T exas pro-lifers had a legal strategy in mind when the state’s heartbeat law, also known as S.B. 8, went into effect on September 1.
They’d sue an abortion provider under the law to try to get the inevitable litigation about the statute going in the most favorable district court under the best circumstances for their side.
When the morning of September 1 arrived, though, they realized this legal strategy had a fundamental problem — there were apparently no abortion providers violating the statute to sue.
Abortionists had, as far as anyone could tell, ceased performing abortions after six weeks in the state of Texas.
This was an eventuality shocking even to the most committed proponents of the bill. “And so when we get two or three days before the effective date of the law,” recalls state senator Bryan Hughes, the chief legislative proponent of the law, “we’re talking to some of our lawyers about what to do — we’re filing our first lawsuit, we can sue them. And then we realized that we can’t sue them because they’re complying with the law!”
For the time being and at least for several days, much of the machinery of abortion had ground to a halt in Texas while Roe and Casey are still on the books, a truly extraordinary accomplishment.
Rich DeOtte, a board member of Texas Right to Life, believes the weekdays beginning on Wednesday, September 1, must have seen the fewest abortions performed in the state of Texas of any other normal weekdays over the last 50 years.
It’s certainly possible that the Texas heartbeat bill may yet fail or backfire.
After a procedural defeat last week in the Supreme Court, which declined to block the law, it seems likely that the Left — frothing with rage over the bill and highly motivated — will eventually find a way to get a test case going on the merits, with lavish national funding backing it.
It may very well be that the politics of the law bounce the wrong way. The law doesn’t have an exception for rape and incest (pro-life bills haven’t had such exceptions for years in Texas). This provides an obvious line of attack for opponents.
There are legitimate concerns, too, that the law’s method of relying on private lawsuits for enforcement, once brought into the arena of cultural politics in this high-profile way, will be turned against conservatives.
The broader context, though, is that pro-lifers in Texas feel an urgency about protecting unborn life in an environment where any meaningful restrictions have been blocked for decades in the courts on the basis of spurious Supreme Court decisions.
There is almost an evolutionary element to it. Under constant pressure from the courts, pro-life activists and lawmakers have been pushed to adapt their tactics until they found something in Texas that, much more subtle and complex than anything tried before, has unlocked the legal puzzle, or at least a piece of it and at least for now.
In an editorial blasting the law late last week, the Wall Street Journal concluded with a biting last line asking its architects, “How about thinking first?”
This is deeply unfair. The heartbeat law isn’t a slapdash effort or a shortsighted play for headlines — it’s the culmination of years of advocacy and thought by persons who, after frustration upon frustration in the courts, decided it was time to try something new.
‘How Do We Succeed Where Other States Have Failed?’Among the key state-level players were Texas Right to Life, a 50-year-old advocacy organization run by Jim and Elizabeth Graham, known for its principle and relentlessness, and state senator Bryan Hughes, a long-time pro-life champion in the Texas legislature.
A crucial behind-the-scenes player was the former solicitor general of Texas, Jonathan Mitchell.
Because Roe and Casey are such obstacles, Texas pro-lifers couldn’t merely have a political and legislative strategy — i.e., making the case for bills, passing them, and assuming they’d take force. There had to be a legal and jurisprudential strategy, as well. Texas has the advantage of a conservative circuit, the Fifth Circuit, and a state attorney general who would defend pro-life legislation, whereas some attorneys general in other states chose to settle. This provided an opening to find chinks in the armor of Roe and to illustrate flaws in its reasoning to help build the intellectual case against it.
“We kind of felt like we had a unique opportunity to really push good bills forward that challenged the erroneous precedent of Roe, and highlight the kind of errors that they’ve made, specifically the dichotomy between post viability and pre viability,” John Seago, the legislative director of Texas Right to Life, explains. “So that’s what we’ve been doing for the last decade, is trying to pass all legislation that banned abortions, that would be good vehicles for undermining the foundations of Roe.”
There were a couple of motivations that went into the heartbeat bill specifically.
First, heartbeat bills have been a priority of the right-to-life movement nationally. The push for the bills, Seago says, “had this real momentum behind it, because people could immediately understand what it was, and there’s a really compelling — simple, but compelling — moral logic to it.”
Second, it was an objective not to fail the way everyone else had. Texas wasn’t at the forefront of the push for heartbeat bills, so it could watch what was happening in other states, where the laws passed and got instantly blocked.
This accomplished little or nothing, and in fact could even be counter-productive — massive legal fees would often have to be paid to the ACLU and Planned Parenthood, and the litigation only added another layer to bad court precedent.
“Going into the legislative session,” Seago says, “we had about a dozen or 13 states that had failed in this. And so our question is, well, how do we succeed where other states have failed?”
Another consideration was that even if a ban on abortion passed and was upheld in the courts, there was a risk that progressive district attorneys simply wouldn’t enforce it.
Pro-lifers in Texas had long worried whether, say, the district attorney in Travis County, home of Austin, Texas, would ever prosecute a violation of a pro-life law. The fear crystallized when in October 2020, dozens of state attorneys general and district attorneys from around the country said they’d exercise prosecutorial discretion to disregard restrictions on abortion. A number of Texas district attorneys signed the letter.
“That kind of solidified what we’ve known for a decade,” says Seago. “That if you want a pro-life bill to be enforced, you don’t depend upon district attorneys; you find other avenues.”
“That motivated us to find a better way to enforce pro-life laws,” agrees Bryan Hughes.
Elizabeth Graham notes the overwhelming sense that when it comes to abortion policy, the usual judicial norms don’t apply, and every means is considered in-bounds to block pro-life legislation — “rules are bad, precedents are warped, rights are invented.”
Heather Hacker, an attorney and former assistant solicitor general of Texas representing one of the defendants in the heartbeat litigation, notes the shifting and arbitrary jurisprudence: “Courts recently have even enjoined laws that are similar to ones that the Supreme Court has upheld before, that regulate abortion. Their standard is so amorphous, and I think that a lot of states may feel like their hands are tied.”
She cites the experience Texas had with a dismemberment-abortion ban: “That law was supposed to go into effect in 2017. It was enjoined before it went into effect. And it’s been litigated for several years, and it’s scheduled to finally, after the Fifth Circuit en banc ruled and upheld the law, it’s finally scheduled to go into effect this Thursday — four years later. These things are really getting held up in the court for a long time.”
All of this added up to the drive to find innovations.
For Texas Right to Life, civil liability itself wasn’t new. An element of civil liability was often included in its proposed bills. The change in the heartbeat bill was to strip out the criminal and administrative penalties, as well as expanding the people who have standing to sue over a violation.
“We had never done that before,” Seago explains. “We had only kept it to the woman herself, because she regretted her abortion, or her partner, or possibly her parents if she’s a minor. Those were the only parties that would have standing to bring these suits. And so the novelty of Senate Bill 8 was only civil liability, no criminal, no administrative, and also opening it up for anyone to sue.”
That approach had been getting a trial run at the local level.
‘Look at Lubbock’Back in 2019, Mark Lee Dickson, a 30-something activist with Right to Life of East Texas (a different organization than Texas Right to Life) and a pastor at Sovereign Love Church in Longview, Texas, worried that an abortion restriction in Louisiana might cause an abortion clinic in Shreveport, La., to move across the border to Waskom, Texas.
He took his concern to the mayor of Waskom and suggested an ordinance banning abortion as a preemptive response. “At that point,” Dickson says, “I realized that no city had passed an ordinance before outlawing abortion. Now, some cities had done zoning ordinances to zone abortion facilities out, but those always ended in lawsuits with the city losing. At that time, no city had just done an outright ban on abortion.”
Dickson gave a heads-up to Bryan Hughes, who represents Waskom, and Hughes suggested getting in touch with his friend and legal adviser Jonathan Mitchell for advice on crafting the ordinance. (Mitchell now represents Dickson in the heartbeat bill litigation.)
Mitchell, a former Antonin Scalia clerk, has been a professor and visiting professor at various law schools and now has his own law practice. He has known Hughes for about ten years from his time as Texas solicitor general. The eventual Waskom ordinance drew on his soon-to-be-famous law-review article, “The Writ-of-Erasure Fallacy,” which he wrote while a visiting professor at Stanford Law School and a visiting fellow at the Hoover Institution.
The argument was that the federal judiciary doesn’t actually “strike down” or formally overturn laws when pronouncing them unconstitutional, even though many people loosely talk about judicial review that way. Neither does the judiciary wield a pre-clearance power over legislative enactments. Instead, the judiciary’s pronouncements merely prevent defendants from enforcing laws that the judiciary regards as unconstitutional. The laws, though, remain on the books — the Court doesn’t have the power to excise or “erase” them.
This led to the idea of finding a way around Roe v. Wade by crafting an ordinance that would be impossible for abortion providers to challenge in a pre-enforcement lawsuit.
So Waskom passed its ban in June 2019 crafted in a novel way that now will sound familiar. The law banned abortion, but kept the city from enforcing it, instead deputizing the citizenry to pursue civil lawsuits against anyone performing abortions.
It was never challenged, although tiny Waskom never had an abortion provider, and none tried to move in.
Dickson hopscotched the state, helping localities to pass similar ordinances in what is known as the sanctuary-for-the-unborn movement. More than 30 cities in Texas now have such laws on the books.
Then, there was a big fight in Lubbock, Texas. Abortion clinics in Texas are usually located in fairly liberal towns. Lubbock, in the northwest of the state, is an exception. A Planned Parenthood clinic opened there last year.
Pro-life activists responded by pushing the city council to ban abortion with the kind of ordinance advocated by Dickson. The city council voted it down overwhelmingly. The activists proceeded to get the proposal on the ballot for a referendum. It passed comfortably 62 percent to 38 percent in May 2020 and had the essential features of this new approach, relying on civil lawsuits rather than enforcement by the city.
Planned Parenthood sued the city of Lubbock shortly thereafter. It lost when a federal district judge concluded there was no controversy between Planned Parenthood and Lubbock because the city didn’t enforce the ordinance.
“Because the ability to remedy a plaintiff’s injury through a favorable decision is a prerequisite to a plaintiff’s standing to sue — an ability absent here — the Court dismisses the case for lack of jurisdiction,” wrote James Wesley Hendrix.
Planned Parenthood complied with the city ordinance, and Lubbock had effectively banned abortion despite Roe. The litigation and aftermath in Lubbock got no national attention, but it was clearly a precursor to the controversy over the heartbeat bill.
“When people have asked me,” Dickson says, “‘Are you going to sue the abortion industry if they violate the heartbeat bill?’ I say, ‘Well, I really don’t think the abortion industry’s going to violate the heartbeat bill — because look at Lubbock.’”
‘Okay, It’s Your Turn’In 2019, the Texas legislature didn’t pass any bill that restricted abortion. Texas Right to Life sought to exact a political price, by delaying its endorsements and dropping the ratings of lawmakers on its legislative scorecard.
2021 would be different, thanks, in large part, to Bryan Hughes. He got involved in politics as a pro-life activist. He served seven terms in the House representing the northeast corner of the state before he got elected to the Senate in 2016. In the House, he was the “pro-life whip,” says Elizabeth Graham, and now he had a powerful perch as chairman of the Senate State Affairs Committee.
Seago describes what Hughes did as passing a raft of pro-life bills, “then just left them on the doorstep of the House of Representatives. Kind of just like, ‘Okay, it’s your turn. What are you going to do? All the eyes are on you guys.’ And that really set us up for success.”
The biggest bill was called “the Texas abolition strategy,” a nod to the critics of the pro-life movement who think it’s not going nearly far enough by not banning abortion outright immediately. The bill took a phased approach. It had anti-discrimination language forbidding abortion motivated by the sex, race, or disability of the child that would have taken effect immediately; then a couple of years later a heartbeat measure would take effect; and finally, a few years after that, a total abolition of abortion with an exception for life of the mother.
The House didn’t take up that bill, but it helped shift the Overton Window and open the way for the heartbeat bill.
Great care had to be taken with the bill if its novel approach was going to work. “If you think about it,” Hughes says, “a big bill like this, there’s going to be certain things we delegated to the agencies on rule-making. There’s all kinds of state stuff. We scrubbed this bill to take out any hint of state action, because we knew if there was anything, if there was rule-making, then the opposition could sue the state medical board and get in federal court.”
Representative Shelby Slawson, a freshman lawmaker from central Texas, took up the baton in the House. She has long been a pro-life advocate. The first bill she sponsored in the legislature was a pro-life measure. “Very quickly after that,” she recalls, “Briscoe Cain, another state representative, and Senator Hughes invited me to work with them on the bill that they had already been working on. It was an opportunity that led to exactly where we are today with the Texas Heartbeat Act.”
The bill passed the House relatively easily. There were so many other hot-button bills, from election reform to constitutional carry, that the heartbeat bill didn’t attract the inflamed opposition during the process that it might have otherwise. “Who would have thought the day would come when Democrats would be relatively resigned to the passage of an abortion bill because they considered other conservative reforms more important to try to stop?” says Graham.
Soon enough, though, the controversy over the law would blot out the sun.
‘We May Have Won Without Firing a Shot’The animating idea was to keep the law out of the courts entirely by forbidding state officials to enforce it, thereby denying the federal judiciary the ability to “enjoin” the enforcement of the law, while simultaneously making the civil-liability sanctions for violating the law so severe that abortion providers would comply, obviating the need for anyone to sue them in state court and keeping the state judiciary from weighing in on the statute’s constitutionality.
Both of those mechanisms have worked brilliantly so far.
The Supreme Court didn’t grant the abortion providers their request for emergency relief because there was no one to enjoin, in a stark illustration of Jonathan Mitchell’s point about how judicial review works. There were eight defendants, including a state judge, a court clerk, various state officials, and Mark Lee Dickson.
The defendants who were state officials have nothing to do with the enforcement of the law, so they cannot be sued in federal court. And Dickson, a private citizen, hadn’t sued or threatened to sue anyone yet, and even if he were enjoined from doing so, that relief would be useless to abortion providers because countless other people would still be able to sue them if they violate the statute.
As Heather Hacker puts it, “It would only be one judge out of hundreds, one clerk out of hundreds, and then there’s one individual out of millions.”
Meanwhile, there is a huge sword hanging over the heads of Texas abortion providers that compels them to comply rather than risk the prospect of endless private-enforcement lawsuits.
Any abortion provider who violates Senate Bill 8 can be sued by anyone (other than a state-government official or employee) and required to pay at least $10,000 for each illegal abortion performed, plus court costs and attorneys’ fees. Since anyone who aids or abets the abortion is equally liable, the administrative assistant can be sued, the landlord who rents the property can be sued, any vendor providing material support can be sued. (An Uber driver, the favorite hypothetical of the critics, wouldn’t be liable for innocently driving a woman to a clinic — the law says that one must knowingly engage in conduct that aids or abets an abortion to be held liable.)
This creates a huge risk to anyone participating in the process of performing abortions in any way and presumably makes it much harder for abortion clinics to procure the supporting infrastructure they need to stay in business.
Then there are the potential criminal penalties. They aren’t specified in the law, but as the statute notes, the pre-Roe abortion bans in Texas were never repealed, and they continue to authorize punishment of two- to five-years’ imprisonment for any abortion performed in Texas, except for abortions performed to save the life of the mother. So anyone performing or assisting an elective abortion in Texas will face criminal liability if the Supreme Court overrules Roe at any time within the next three years, as Texas law establishes a three-year statute of limitations for abortion crimes.
The civil-liability provisions have drawn comparisons to vigilantes and bounty hunters, as if a pro-life Bass Reeves is about to ride again.
Obviously, though, filing a lawsuit is not a lawless act. If there are suits under the law, says Graham, “plaintiffs are taking evidence to a judge, and the judge determines if a criminal case should proceed from there. That’s not vigilantism.”
Hacker emphasizes the point, “S. B. 8 didn’t change anything in terms of the rules of civil procedure and the standard of proof and rules of evidence and all those basics, so all of that still applies. It would just be a case that you would have to prove. And then only if you’re successful do you get those statutory penalties.”
Also, private civil-enforcement provisions are hardly unprecedented, even if this is the first law that extends this enforcement mechanism to abortion.
The Texas law draws on the long-established practice of so-called qui tam lawsuits, where a private party sues over wrongdoing and collects part of the award if the suit is successful. This is a feature of the federal False Claims Act, the Texas Medicaid Fraud Prevention Act, and many other statutes around the country. In a 2000 decision, the Supreme Court upheld the constitutionality of qui tam and ruled that individuals have standing to sue under the False Claims Act, noting the long lineage of qui tam in England and colonial America.
At the end of the day, how you regard the Texas law depends much on how you regard Roe and abortion. If Roe is an illegitimate usurpation by the Court that has created an abortion regime that has no constitutional, democratic, or moral legitimacy, the law will look like a welcome, inventive response to a monstrous ongoing provocation, with Texas finding a way to reassert its prerogatives and protect a class of people, the unborn, trampled by the Court.
It is still too early to know how the law will play out, legally, politically, or in its potential influence on the Supreme Court’s consideration of Roe and Casey. But it’s a sign of its initial success that its supporters are allowing themselves, very guardedly, to begin to think the unthinkable. “We may,” Hughes says, “have won without firing a shot.”