Texas, the birthplace of Roe v. Wade, made history in 1973—but it could now be history if the Texas legislature has its way.
It’s fitting that my home state of Texas is the one that finally put a bullet through the heart of Roe v. Wade. Other states—notably Mississippi, Kentucky and Arkansas—have narrowed the window for women to exercise their legal right to abortion, but it took the great state of Texas to squeeze it to a slit.
Texas was, after all, the birthplace of the modern abortion-rights era. Jane Roe, a resident of Dallas County, took Henry Wade, that county’s district attorney, to the U.S. Supreme Court, where he was told that neither he nor any district attorney in any county in the country, could under the United States Constitution stop a woman from terminating her pregnancy. It made history in 1973, but it could now be history if the Texas legislature has its way.
Senate Bill 8, put forward by Texas Republican legislators and signed into law on May 19 by Governor Greg Abbott (R), effectively precludes any woman in that state from obtaining an abortion. The so-called “heartbeat” ban (inherently a misnomer) says that once a fetal heartbeat is detectable, abortion is no longer an option. This applies regardless of the cause of the pregnancy, even if due to rape or incest, but there is a carve-out for procedures certified by a licensed physician to be medically necessary.
Although there is some disagreement on the science regarding when a heartbeat signals the presence of a live being—one medical expert called it no more than “a group of cells with electrical activity” in the early gestation period—there is no disagreement about how early in the process that occurs: about six weeks. For virtually all women, shortly after they’ve missed a menstrual cycle is already too late. If an adult woman can’t catch it in time, just imagine what this means for a young girl raped by her father or brother or uncle.
To make matters worse, the bill deputizes everybody in the state, with the exception of rapists, to prosecute violators by filing a civil lawsuit against the person who violates the law. And violators include not just the woman seeking the abortion but her “aiders and abbettors”—anyone and everyone who helps her financially, logistically or in any other way in this effort. Think friends, family members, counselors, clergy, even good ol’ me —a victim’s rights attorney who routinely connects rape survivors with nonprofit agencies for counseling and support on access to abortion and health care. Think hundreds of frivolous and harassing lawsuits clogging the court system.
The bill actually encourages lawsuits by awarding plaintiffs suing violators a minimum of $10,000 in damages plus court costs and attorney’s fees. If they lose, plaintiffs are not required to cover the defendant’s attorney or court fees. This means that an individual or organization that is sued could prevail on a claim but still be bankrupted by the cost of litigation to defend themselves from a baseless lawsuit.
Furthermore, the lawsuit can be brought anywhere in the state, compelling defendants to travel far and wide—Texas is an enormous state—or risk losing by default.
The bill actually encourages lawsuits … It’s flat-out harassment.
It’s flat-out harassment, but at least one portion of the law is unlikely to withstand legal scrutiny. The problem is that abortion rights advocates will have difficulty challenging the law as it’s currently drafted. Set to take effect September 1, the bill provides no official enforcement mechanism other than a private civil right of action. With no public official, such as Dallas County DA Wade, against whom to seek an injunction, the pro-abortion contingent must think outside the box.
First, there’s the heartbeat ban. This restriction flies extremely close to the third rail of Roe v. Wade, essentially a complete ban on abortions under a different name. Given the current composition of the Supreme Court and its readiness to wade (pardon the pun) into the Roe quagmire—hearing a challenge to Mississippi’s 15-week ban in 2022—we can expect to see an appeal of the heartbeat law in the not-too-distant future.
The second part of the bill, which allows everybody and their brother to bring legal action against any party involved in an abortion decisions, clearly runs afoul of the Texas Constitution. Under the law of the land, only parties who have been injured, not uninvolved third parties, have the right to file tort claims. Justice Don Willett, formerly of the Texas Supreme Court, now on the federal Fifth Circuit, has noted that the standing doctrine requires a concrete injury to a plaintiff, that they be personally injured and plead those facts.
How ironic it is that Texas Republicans, who have in the past enacted legislation limiting the ability of individuals injured by medical malpractice to bring lawsuits, now believe that average citizens are the ones injured when a pregnant woman’s best friend or family member pays for her to get treatment or merely aids or supports her in the process. This portion of the bill should not be allowed to stand without a serious overhaul of the Texas state Constitution.
So what does it all mean for the people of Texas, the majority of whom actually disapprove of SB 8’s draconian terms? In the short term, pending clarification on whether the law will take effect September 1, women, service providers, advocacy groups, and anyone who might in any way suggest, promote or facilitate an abortion will second- and third-guess what they do and as of September 1 might be sued and subject to a civil liability. Reproductive freedom for women in Texas will be an idea, not a reality. Once they realize they’ve missed a period, it will likely be too late as of September 1.
In my own practice, I support victims of rape and incest—women so shell-shocked and ashamed by what happened that they cannot acknowledge a pregnancy until it is too late. As a lawyer, I could try to wave the attorney-client privilege flag, but I know it will likely be shot down. My strongest move will be to go public, working in coordination with agencies and advocacy groups, such as one that helps minor girls through the judicial process that Texas requires before they can get an abortion. The more of us who speak up, the better our chances of educating the public and stoking a groundswell of opposition to the law.
The saddest part of this story is that immigrant women, young women, women of color and the indigent women without health insurance or access to private doctors will be the ones most harmed by SB 8. Women of means will find doctors to write medical necessity statements, and they will continue to have choice. The rest will be victimized yet again.
The value of human life in Texas is a complete mystery. A six-week fetus with a questionable heartbeat is more deserving of protection than a bystander killed by gunshot from a weapon whose owner is no longer required to be licensed. What a strange time this is to be a woman.