Not one vigilante lawsuit yet, but new Texas law has cut abortion to a trickle and kept courts busy

By Todd J. Gillman

WASHINGTON – A federal appeals court struck down a Tennessee law on Friday that bars abortion once a fetal heartbeat is detected.

Yet a nearly identical ban in Texas remains in effect – in large part because of the novel way the new law outsources enforcement, providing a $10,000 incentive for anyone in the country to sue anyone who “aids or abets” a post-heartbeat abortion.

The Justice Department lawsuit aimed at derailing Texas’ abortion bounty law won’t immediately alter the landscape for abortion clinics or women seeking to end pregnancies after six weeks.

But the status quo has already changed dramatically since Senate Bill 8 took effect on Sept. 1.

Abortions are down at least 90%.

Two dozen clinics in Texas perform about 53,000 abortions each year, according to state data. Rough math suggests that in the first 10 days, about 1,300 women who would have terminated a pregnancy may have no choice but to carry to term.

Or as SB8′s advocates see it, 1,300 lives have already been saved.

That number will tick up by about 1,000 a week until the courts sort it all out, and many legal skirmishes are underway.

The Justice Department lawsuit, and requests for a preliminary and permanent injunction and to declare SB8 unconstitutional, are in the hands of U.S. District Judge Robert Pitman in Austin, an Obama appointee and former U.S. attorney.

The lawsuit paints SB8 the Texas law as a flagrant violation of women’s constitutional rights while seeking to evade judicial review by taking enforcement out of the hands of government officials.

Abortion rights advocates see ample legal ammunition in the 27-page filing for Pitman to suspend enforcement, at minimum. However he rules, an appeal is almost certain.

That would go to the 5th Circuit federal appeals court in New Orleans, which is already wrestling with aspects of SB8 – the issue at the heart of the Supreme Court’s 5-4 ruling that let the law take effect, rejecting a plea from abortion providers on grounds they hadn’t shown irreparable harm yet, because no one had sued so far under the vigilante provision.

The private civil-enforcement mechanism is what makes SB8 so unusual.

Attorney General Merrick Garland, announcing the federal effort to strike down the law on Thursday, warned of that if Texas is allowed to strip women of their rights by deputizing legal vigilantes, then abortion isn’t the only right in peril.

“The law allows any person in the whole country, with no injury, no connection to the abortion -- a complete stranger -- to bring a lawsuit for each abortion, and there’s no limit on the number of lawsuits per abortion,” said Helene Krasnoff, vice president for public policy litigation and law at Planned Parenthood Federation of America.

The risk of financial ruin from such lawsuits is so great that providers have had no choice but to turn away most women. Before Sept. 1, as few as one in 20 abortions took place in the first 6 weeks.

Justice Sonia Sotomayor, dissenting from the ruling that let SB8 take effect, called it a “flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”

Abortion foes shrug off complaints that the law creates a Catch-22.

With providers falling in line, “there’s no justification for us to file anything at this moment,” said John Seago, legislative director of Texas Right to Life. “We don’t have any intention of bringing frivolous lawsuits.”

Texas Right to Life pushed for SB8 and set up a website to collect tips on potential defendants.

“The legislative intent is that the bill is complied with and that abortions are stopped after a heartbeat is detected. In that sense it’s working,” Seago said.

Since legalizing abortion in 1973 in Roe v. Wade, the U.S. Supreme Court has never upheld a law that limits abortion so early in pregnancy.

A 1992 ruling, Planned Parenthood v. Casey, protects “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.”

A fetus becomes viable at about 24 weeks, and the Supreme Court in May agreed to hear arguments this fall in a Mississippi case involving a 15-week abortion ban.

With the shift in the court during Donald Trump’s presidency, that could be the vehicle for conservatives on the Supreme Court to overturn Roe.

On Friday, the 6th Circuit appeals court tossed out Tennessee’s fetal heartbeat law, reaffirming that under existing Supreme Court rulings, that cutoff point is much too early.

The ruling “rightly respected nearly 50 years of precedent,” said Brigitte Amiri, deputy director of the ACLU’s Reproductive Freedom Project. “With all eyes on the devastating effect of Texas’ abortion ban, this is a welcome news for Tennesseans and the rule of law.”

There’s a key difference between that law and SB8. The Texas law outsources enforcement. The state isn’t the entity interfering in the right to choose an abortion.

An embryonic heartbeat can be detected as early as six weeks from the last menstrual cycle, or just two weeks after a woman with a predictable cycle might have missed a period.

That leaves just two weeks, a tenuously narrow window given the mosaic of other Texas restrictions:

Women must undergo an ultrasound, and receive state-mandated information about fetal development.

Unless they live more than 100 miles from the nearest provider, they then must wait at least 24 hours before coming back for the procedure.

Of those 1,300 women whose pregnancies were too far along for a legal abortion once SB8 took effect, some may still have options – those with enough money to go out of state.

Lower income women will be unable to exercise the right still technically in place under Roe.

“Every day that this extreme abortion ban remains in place is another day that the overwhelming majority of our patients are forced to try and leave the state just to access essential health care,” Planned Parenthood of Greater Texas said Friday.

The longer SB8 is in effect, the worse the financial pain for abortion providers. With revenue reduced, they may struggle to cover salaries and rent. Advocates fear that some clinics will be forced to close, making access to abortion even harder.

This of course is no reason for lament among abortion foes.

“I would be surprised if this law bankrupted Planned Parenthood since they claim it’s only 3% of what they do. That doesn’t seem consistent with their messaging,” Seago said.

Last week, Travis County District Court Judge Amy Clark Meachum issued a temporary order barring private action lawsuits aimed at a particular Dallas lawyer or her clients by Texas Right to Life, Seago personally, or any “John Doe” the group had communicated with.

The judge expanded the order to cover eight others represented by attorney Elizabeth Myers, including an attorney who represent groups that fund abortions, social workers, and an abortion provider. A hearing is set for Oct. 4.

Planned Parenthood affiliates in Texas have also gotten temporary protection against potential lawsuits. A hearing on that injunction request will be held Monday.

But none of the orders precludes lawsuits from millions of other people in Texas and other states who might want to pitch in.

Myers said she thinks the courts’ temporary protection has deterred such SB8 lawsuits “but it’s just a matter of time.”

“I don’t think the threat of organizing and surveillance and potential lawsuits is going away,” she said. “Maybe we’ve been able to push it off.”

(Austin correspondent Morgan O’Hanlon contributed to this report.)

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