- The Washington Times - Wednesday, September 8, 2021

The Supreme Court declining to block a pro-life law in Texas this month that curtails most abortions after a fetal heartbeat is detected has motivated lawmakers in red states to mirror the legislation.

Though the law is still facing legal challenges, the high court in a 5-4 move did not block it from taking effect Sept. 1. Abortion clinics in Texas stopped performing post-six weeks gestation abortions at midnight.

Neighboring states, meanwhile, have reportedly seen an increase in Texas residents traveling to their clinics.

Pro-choice critics of the law claim it effectively overturns Roe v. Wade, the landmark Supreme Court ruling in 1973 that granted the right to an abortion up until viability.

Some conservative legal scholars, though, say that hasn’t happened just yet and the pro-choice activists have jumped to conclusions.

What the law says

The Texas law prohibits abortion providers in the state from performing an abortion after a fetal heartbeat is detected, usually as early as six weeks of gestation. Typically a fetal heartbeat is detected on a sonogram between six and eight weeks of pregnancy.

An abortion provider can only perform an abortion past the limit if there is a medical emergency for the pregnant woman, which must be thoroughly documented in written records kept by the clinic.

Ultimately, it is up to the abortion provider to halt any abortion procedure if a fetal heartbeat is detected.

If a provider ignores the heartbeat and continues the procedure, the provider would be subject to a civil lawsuit brought by any individual — not the state — for violating the legislation, known as SB 8.

Because the legislation doesn’t set a specific weekly limitation on abortion, courts could eventually, according to Jonathan Turley, a law professor at George Washington University, find the ambiguity “constitutionally problematic.”

“The law creates a chilling effect that would be perfectly glacial for providers. I would expect lower courts to find that the law does not meet the controlling case law,” he said.

How is the law enforced?

Any provider who performs or anyone who assists a pregnant person in obtaining an abortion after a fetal heartbeat is detected can be sued for violating the legislation by any citizen — not by the state of Texas.

The legislation differs from other pro-life state laws in that it gives private citizens the right to sue abortion providers and anyone assisting in the unlawful procedure in civil court rather than leaving a criminal probe to state officials.

Is there a ‘bounty’ for suing abortion providers?

If an individual successfully sues an abortion provider or anyone else who assisted a person in obtaining an unlawful abortion in violation of SB 8, the court can reward $10,000 to the plaintiff who brought the case.

Critics of the law have claimed this creates a bounty over abortion providers and leads to vigilante justice.

But legal rewards are not uncommon, according to Josh Blackman, a professor from South Texas College of Law.

Mr. Blackman said private citizens can sue government contractors for alleged fraud and possibly obtain three times the damages in court.

“I don’t think the $10,000 is that significant,” he said.

Mr. Turley, likewise, noted citizen enforcement provisions have been upheld in other legal fields.

“The question is not the legality of citizen lawsuit but the impact of the law on previously recognized rights to an abortion,” he said.

Where does the legislation stand?

A lawsuit brought by abortion providers challenging the constitutionality of the law is pending at the U.S. 5th Circuit Court of Appeals.

The case could return to the Supreme Court for the justices to weigh if the law is constitutional or not under Roe v. Wade and other precedents. They previously decided not to halt its enforcement on an emergency appeal by the abortion providers.

Because the justices did not quickly block its enforcement, Steven Schwinn, a law professor at the University of Illinois, told The Associated Press that the justices gave other red states a “road map for circumscribing Roe v. Wade.”

Lawmakers in Mississippi and Arkansas are looking to mirror the language in the Texas legislation.

Will the law pass muster in higher courts?

Though the Supreme Court did not block the law from taking effect, a state judge in Austin issued a restraining order against Texas Right to Life, a large pro-life group, blocking the organization from suing Texas abortion clinics. But the move did not block the law altogether.

It is an uphill battle for a third party to successfully prove a person had an abortion beyond the detection of a fetal heartbeat unless the case reaches discovery, where medical records can be provided and scrutinized.

A successful suit against a provider likely would require a woman who had an abortion after hearing the fetal heartbeat and regrets it, or the father of the aborted child, legal scholars warn.

Mr. Turley said it is unlikely the law could have the “broad interpretations raised by some legal commentators to include those advocating for abortion.” Pro-choice activists have said anyone — even those driving a woman to an abortion clinic — could be sued. But legal scholars caution against that claim.

Texas Sen. Bryan Hughes, who authored the law, said the only way a driver assisting a woman in getting an abortion would be liable is if that individual knew the woman was getting an abortion — and also knew there was a fetal heartbeat.

“Liability only arises if there is intent,” he said. 

Meanwhile, Mr. Turley said the First Amendment would come into play.

“The First Amendment still protects speech and associations,” Mr. Turley said. “The Supreme Court neither overturned Roe or upheld the Texas law as claimed by some.”

He added, though, if the case returned to the Supreme Court over its constitutionality, he suspects it would be found unconstitutional.

“Moreover, the real threat to Roe is not coming from Texas but Mississippi,” he added.

Mr. Turley was referring to Mississippi’s ban on abortion after 15 weeks. The Supreme Court agreed to decide if the ban runs afoul of its 1973 ruling in Roe v. Wade during its next term, which begins in October.

An opinion on the Mississippi law is expected by the end of June 2022.

This article is based in part on wire service reports.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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