Texas Abortion Providers Challenge Fetal Heartbeat Law

Abortion providers filed a federal lawsuit on Tuesday attempting to block a Texas bill that allows any private citizen to sue individuals — including doctors, counselors, or family members — who help a patient get an abortion as early as 6 weeks of pregnancy.

The lawsuit, filed by abortion providers, clinicians, clergy members, and others, requests that federal courts overturn the state’s new “heartbeat” bill, SB8, before it goes into effect on Sept. 1.

“I have never felt more outraged or angry than I did when this egregious and inhumane law was passed,” Bhavik Kumar, MD, a physician at Planned Parenthood Center for Choice in Houston and one of the plaintiffs in the case, said during a press briefing. “While we are tired of the relentless attacks on people we know and care for directly … we will serve our patients with the dignity and respect that this state denies them.”

Like many other “heartbeat bills” that have been proposed across the country, the new Texas legislation bans abortions after a fetal heartbeat is detected, which can occur as early as 6 weeks’ gestation. The bill, which was signed into law in May, makes an exception for medical emergencies.

But what makes the Texas law unique is that it deputizes private citizens to enforce it. Any individual — whether they have a connection to the abortion or not — will be able to sue those who assist a patient with getting an abortion after 6 weeks. This threatens not only abortion providers who perform the procedure, but also counselors, social workers, nurses, or even friends or family members who drive a patient to an abortion clinic.

If cases filed against anyone who “aids and abets” an abortion succeed, claimants are entitled to an award of statutory damages of at least $10,000.

“With this law, Texas politicians have taken their hostility to abortion rights to a new extreme,” said Marc Hearron, JD, senior counsel at the Center for Reproductive Rights and lead attorney on this case. “Texas’ ban is unlike any other, because this ban can be enforced by any member of the general public.”

Opponents of the new abortion restrictions in Texas also say that it is designed to be more difficult to challenge in court. The law authorizes private citizens to enforce it, and specifically prohibits any state government employee from doing so, meaning that government officials cannot be named as defendants in the case.

In the lawsuit challenging this bill, plaintiffs have named judges and medical licensing boards as defendants — both being parties that can enforce the ban. Additionally, they have sued the director of Right to Life, Mark Lee Dickson, who has encouraged people to enforce this new legislation when it takes effect.

Around 85% to 90% of all people who obtain an abortion in Texas are at least 6 weeks’ pregnant, abortion rights advocates say, meaning that this law may ban nearly all abortions in the state. Additionally, it will require patients to face the logistical and financial hurdles of traveling out of state to get an abortion, which could disproportionately affect low-income and marginalized communities.

The lawsuit is led by Whole Woman’s Health, an abortion provider in Texas. It is joined by Austin Women’s Health Center, Houston Women’s Reproductive Services, Alamo Women’s Reproductive Services, and nearly a dozen Planned Parenthood Clinics in the state.

Amid the legal challenge against Texas’ new abortion restriction, the Supreme Court scheduled its first abortion case hearing this fall. It’s the first such case to be heard by the new conservative majority.

The case, Cameron v. EMW Women’s Surgical Center, aims to defend a 2018 Kentucky law banning dilation and evacuation, a common surgical abortion method used after 15 weeks’ gestation.

But in this case, the Supreme Court will not determine whether or not the Kentucky ban is constitutional. Rather, it will determine whether or not the state’s attorney general, Daniel Cameron, can defend an abortion ban in court — exploring the question of which officials are authorized to challenge and defend abortion restrictions. The court will begin to hear arguments on Oct. 12.