Why anti-abortion advocates think the Texas 'fetal heartbeat' bill can survive a court challenge

Madlin Mekelburg
Austin American-Statesman

Following the lead of conservative politicians in nearly a dozen other states, Texas lawmakers are pushing a bill that would effectively ban most abortions by prohibiting the procedure once a fetal heartbeat can be detected — typically before a woman is aware she is pregnant.

Federal courts have halted attempts in other states to implement such laws, but the architects of the proposal moving through the Texas Legislature believe that the bill they’ve crafted could withstand the same legal challenges that blocked the effort in other states.

While Senate Bill 8 includes the same building blocks as other so-called “heartbeat bans,” it differs in a major way: It leaves enforcement of the law up to the public.

Abortion abolition protesters gather Tuesday in the Capitol Rotunda after the Texas Senate approved six measures to restrict the procedure. The protesters were at the legislature in support of House Bill 3326, which would prohibit abortion.

The bill explicitly prohibits government officials from enforcing the ban and instead would allow for private residents to file suit against anyone who “aids or abets” an abortion in violation of the law.

“What the state is hoping here is that because the bill says no state or government official can enforce this law, what happens is that the abortion providers aren’t able to go to court,” University of Texas law professor Elizabeth Sepper said. “What they’re hoping for is that abortion providers simply have to wait, with the threat of this litigation hanging over their head.”

More:Texas Senate approves legislation banning most abortions, testing Roe v. Wade

Despite building this protection into the law, the anti-abortion advocates behind the proposal say they still intend to fight against the constitutional right to abortion.

John Seago, legislative director for Texas Right to Life, said that instead of provoking a legal challenge when the bill is signed into law, the intent is to create legal precedent through the first lawsuit brought against an abortion provider.

“There’s still going to be a constitutional challenge, even with this scheme of enforcement,” Seago said. “The first time that someone is going to be prosecuted, you’re going to see a constitutional challenge, it’s just going to be in a different venue and a different kind of legal context.”

Seth Chandler, a professor at the University of Houston Law Center, said the strategy employed in the bill is “so transparently silly” that it is unlikely to be successful.

"This bill is an ill-conceived attempt to make an end run around existing Supreme Court law," he said. "It's a fantasy to think that this bill, which is really cynical, is going to do any better than a more direct attack."

Lt. Gov. Dan Patrick listens during debate of anti-abortion bills in the Senate Chamber at the Capitol on Tuesday.

Using the courts

The proposal is one of seven abortion bills approved by the Texas Senate this week, including a proposal to prohibit pill-induced abortions after seven weeks of pregnancy and another that would ban the procedure should the U.S. Supreme Court reverse earlier decisions legalizing abortion.

Anti-abortion advocates are pushing an aggressive agenda during this year’s legislative session, in light of changing power dynamics at the Supreme Court and the results of the 2020 election in Texas. Democrats were hoping to win enough seats to take control of the Texas House, but their efforts fell flat.

“That so-called blue wave came into Texas, and it crashed on the rocks and went nowhere,” said Joe Pojman, executive director of Texas Alliance for Life, an anti-abortion advocacy group. “I think Republicans and pro-life Democrats understand that they will be rewarded at the polls in 2022 if they vote pro-life. So they can express their convictions by supporting these laws.”

But unlike Seago and Texas Right to Life, Pojman said his organization only backs bills that it believes will survive a federal court challenge. 

“Some of the other bills, we’re not confident they’re surviving that,” he said. “We need to wait for the Supreme Court to change the terrible Roe v. Wade precedent to allow bills like that to go into effect.”

Instead of waiting for litigation from other states to advance, Seago said Texas is “uniquely situated to lead the movement” and that proposals like Senate Bill 8 were designed to stop abortions and take steps toward overturning Roe v. Wade.

‘This bill will be upheld’

The Texas Senate voted 19-12 to pass SB 8, sponsored by Sen. Bryan Hughes, R-Mineola. All Republicans, joined by one Democrat, Sen. Eddie Lucio Jr. of Brownsville, voted for the measure.

During debate on the proposal, Democrats pushed Hughes to speak to the constitutionality of his proposal and how he would avoid the fate of similar laws blocked by the courts in other states.

“There is no state action in this bill; it does not compel or allow the state of Texas to take any action,” Hughes said. “Those other bills that are working their way to the U.S. Supreme Court, they all provide for government enforcement or criminal sanctions against physicians who violate the law. Each one of those bills was enjoined before it ever took effect. ... We believe this bill will be upheld.”

State Sen. Bryan Hughes, R-Mineola, says his bill to ban abortions when a fetal heartbeat can be detected would be upheld because of a provision in the law that prevents the state from enforcing the ban.

The law would allow any person to sue any abortion provider that violates the statute. The minimum damages afforded in the bill would be $10,000 for a violation.

Chandler said a lawsuit of that nature would be unprecedented — and could be unconstitutional.

"Reading the statute, it basically says anyone in the world except for a Texas official can sue," he said. "So if I personally don't like abortion or even if I love abortion and I want to pick up $10,000, I can sue a doctor."

The Supreme Court has ruled in numerous cases that a plaintiff must have suffered a "concrete injury" in order to sue in federal court. Chandler said state courts may be able to give broader standing to take these cases on, but they will likely be reluctant to do so.

"It might start with abortion, and then it might end in a free for all where anytime somebody does something that's arguably wrong, and courts get clogged with lawsuits," he said. "Imagine I'm offended that somebody hits someone else with their car. It wasn't my car and I wasn't injured, but really they should have been driving more carefully. Can I now sue?"

Other laws banning abortions when a fetal heartbeat can be detected have been blocked because they are “clearly unconstitutional,” Sepper said.

The Supreme Court has held that states may impose restrictions on abortion after the point of fetal viability, the point at which a fetus would be able to survive outside of the womb. Any restriction on the procedure before that point is unconstitutional.

Sepper said it is “unlikely that a federal court is going to fall for this” effort to remove state enforcement from the equation.

“Let’s say the Texas Legislature banned guns, but they say the state isn’t going to enforce this,” she said. “The state won’t take your guns away; they’re not going to sue you and prosecute you criminally if you have a gun. But private citizens can file lawsuits against you, but only in state court.”

In that case, the federal courts would immediately intercede, she said.

“You can’t attempt to strip constitutional rights by requiring someone to go into state court when they face a lawsuit from another private citizen,” Sepper said. “Federal courts would immediately say, ‘Hey, wait a second: You can’t cut off the U.S. Constitution by framing what’s really a state law as a private matter between citizens.’”