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How Texas was successful in banning nearly all abortions


STEKLO | Shutterstock

John Burger - published on 09/08/21

Lawmakers took a page from environmental advocates.

In recent years, several U.S. states have passed legislation severely restricting abortion. Many of these state laws are known as heartbeat bills, as they ban abortion after the point when a fetal heartbeat is detected — which occurs around six weeks gestation.

But the laws could never go into effect, as they were always blocked by court challenges — until Texas’ heartbeat bill went into effect this month.

How did Texas end up having a law so restrictive that it bans abortion at a point far earlier than Roe v. Wade would allow? 

O. Carter Snead, a law professor at the University of Notre Dame, explained in a Washington Post op-ed that Texas legislators found a way to preempt court challenges by following a model used in environmental legislation.

That model is known as “citizen suits.” The Environmental Rights Database website explains citizen suits this way:

Many of the federal environmental laws in the United States allow members of the public to initiate lawsuits in federal court against actors, including corporations, that violate requirements imposed pursuant to federal environmental laws and regulations. Such laws include, among others, the Resource Conservation and Recovery Act, the Clean Water Act, the Clean Air Act, and the Endangered Species Act. … This practice aims to benefit members of the public who may be adversely affected by a violation of federal environmental regulation that has gone unnoticed by the regulatory enforcement agency, and also to provide environmental enforcement through community empowerment.

The difference with the Texas law, however, is that it precludes public officials from enforcing it, leaving citizens as the sole “enforcers.” 

“The law authorizes only private citizens to bring civil suit in Texas state court against those who perform, aid and abet abortions after a fetal heartbeat is detected,” Snead said. “Women seeking abortions are immune from suit, and there is an exception for medical emergencies.

“The Texas strategy was ingenious in that it evaded the usual pre-enforcement injunction by a federal court, which only has the constitutional power to act when the parties before them are involved in a real dispute,” Snead continued. “Because neither the state officials nor the private citizen sued in the case were involved in the enforcement of the law, the Supreme Court lacked the power to intervene.”

As Sarah Isgur, who was Justice Department spokeswoman during the Trump administration, explained in Politico, when abortion providers sued to stop the law from going into effect, “the question was always whom they were going to bring the lawsuit against. The Texas attorney general and governor — the people who normally get sued in state abortion restriction cases — weren’t parties to any of these future lawsuits, so they couldn’t be sued in this case. In the end, the abortion providers decided to sue a state judge, arguing that he was a state actor that could be enjoined from presiding over the civil cases and using the power of the state to enforce the $10,000 award.”

In a 5-4, unsigned opinion, the Supreme Court declined to block the law, saying the abortion clinics who had challenged it had not made their case. But the opinion left open the possibility that the court could entertain future challenges to it.

Biden Administration response

The challenge to the law remains pending in the lower federal courts, and Texas’ seeming pro-life victory has energized pro-choicers all the way up to the Biden White House. Jen Psaki, White House press secretary, said last week that President Biden would “continue to call for the codification of Roe.” House Speaker Nancy Pelosi (D-Calif.) also called for its codification at the federal level.

Biden said he has directed a “gender-focused policy council” in the White House, the Office of the White House Counsel and the Health and Human Services and the Justice Departments to “launch a whole-of-government effort” to respond to the court’s decision. The effort will look “specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe,” he said in a statement.

On Labor Day, Attorney General Merrick B. Garland said the Justice Department would rely on the Clinton-era Freedom of Access to Clinic Entrances (FACE) Act to respond to the situation. 

“The FACE Act prohibits the use or threat of force and physical obstruction that injures, intimidates, or interferes with a person seeking to obtain or provide reproductive health services,” said Garland, who was President Barack Obama’s choice to fill Justice Antonin Scalia’s seat on the Supreme Court, a nomination that Senate Republicans blocked in 2016. “It also prohibits intentional property damage of a facility providing reproductive health services. The department has consistently obtained criminal and civil remedies for violations of the FACE Act since it was signed into law in 1994, and it will continue to do so now.

“The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack,” Garland continued. “We have reached out to U.S. Attorneys’ Offices and FBI field offices in Texas and across the country to discuss our enforcement authorities.”

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