The Texas Heartbeat Act has as thorough and comprehensive a severability provision as you are ever likely to encounter. Due respect for that severability provision poses yet another obstacle to any effort by the Supreme Court to rule for the abortion providers or for the Department of Justice in their cases against enforcement of the Act.
Here are excerpts from section 171.212:
(a) … [I]t is the intent of the legislature that every provision, section, subsection, sentence, clause, phrase, or word in this chapter, and every application of the provisions in this chapter, are severable from each other.
(b) If any application of any provision in this chapter to any person, group of persons, or circumstances is found by a court to be invalid or unconstitutional, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected. All constitutionally valid applications of this chapter shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the legislature’s intent and priority that the valid applications be allowed to stand alone.
(c) The legislature further declares that it would have enacted this chapter, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this chapter, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this chapter, were to be declared unconstitutional or to represent an undue burden.
It is indisputable that the Act has constitutionally permissible applications even under the terribly misguided regime of Roe and Casey. The simplest example concerns post-viability abortions that are not necessary to preserve the life or health of the mother. Other examples that intervenors supporting Texas present include lawsuits against those who provide financial coverage for post-heartbeat abortions and lawsuits against non-physicians who perform such abortions. (And if you think that either of these other examples is disputable, you’re just reinforcing my point below.)
Under the severability provision, if the Court were somehow to block enforcement of the Act against physicians performing pre-viability abortions, it would still have to allow the Act to operate in applications that the Roe/Casey regime allows.
Consider what this means for, say, the crazy option in which the Court would dictate that court clerks could be enjoined from docketing complaints by private parties to enforce the Act. By carving out, as it must, an exception for the Act’s constitutionally permissible applications, the Court would place a burden on court clerks of carefully examining every complaint before docketing it and of making sophisticated legal judgments as to whether the private party is suing over an application that the Roe/Casey regime allows—all at the risk of being held in contempt by a federal district judge.