Bills limiting abortions have been passed in state legislatures across the United States this year. The Guttmacher Institute, a research and policy group focused on reproductive health rights, says more abortion restrictions have been enacted in 2021 than any other year since the 1973 Roe v. Wade Supreme Court decision, which gave women the constitutional right to an abortion.
One of those bills is Senate Bill 8 in Texas, colloquially known as the state’s “heartbeat bill.” Gov. Greg Abbott signed the bill in May and the law is set to go into effect on Sept. 1, 2021. Under the law, abortions are banned after a fetal heartbeat is detected, which can be as early as six weeks into a pregnancy.
Can people who report violations of the new Texas abortion law get $10,000?
Yes, private citizens who successfully sue over violations under the new Texas abortion law will be awarded at least $10,000.
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Texas is not the first state to pass a “heartbeat bill.” Other states, including Georgia and Ohio, have passed similar abortion laws. But Jessie Hill, a professor of law at Case Western Reserve University School of Law in Ohio, said those bans have all been struck down in court for being in violation of Roe v. Wade, which says states can't prohibit abortions until the fetus reaches a point of viability.
According to the American Pregnancy Association, most women discover they are pregnant between weeks four and seven of pregnancy. That means, under the heartbeat bill, some women may not know they’re pregnant until after the abortion ban goes into effect.
When Gov. Abbott signed the bill on May 19, he said the law, “Ensures the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.”
What makes the Texas abortion law unique is how it is set to be enforced. The wording of the law says “any person, other an officer or employee of a state or local government entity in this state, may bring civil action” against anyone who performs an abortion or “aids or abets the performance or inducement of an abortion.” Essentially, that means private citizens, not the state government, are in charge of enforcing the law, according to Caroline Mala Corbin, a professor of law at the University of Miami School of Law.
“This is so unusual; I would even say bizarre,” Corbin said. “What Texas has done here is forbidden state actors from enforcing the law. And instead is saying only private citizens can enforce the law. And not only private people, but any private person. The language actually says any person can bring a suit under this. That means it doesn't have to be someone connected to the clinic, or the woman seeking to end her pregnancy, doesn't have to be someone in Texas. It can literally be any person.”
A person who brings forward civil action against someone over the abortion law, and wins in court, will be awarded at least $10,000, according to the law.
“It is this kind of bounty for suing abortion providers. It creates a huge incentive and a huge invitation to sue,” Hill said.
So, who can be sued under the law? The woman who had the abortion can’t be sued, Hill said. But pretty much everyone else involved could face litigation.
“The person who provided the abortion can be sued for the damages award, but also anyone who aided or abetted that person,” Hill said. “So, anyone who helped pay for it. [The law] even mentions providing insurance coverage for the abortion. Anyone who just assisted along the way, which suggests that employees, someone who gave a patient a ride to the abortion clinic, for example, anyone who participates in the entire process can be sued.”
Hill said the enforcement aspect makes the law more difficult to challenge.
“Because normally, when abortion providers want to challenge a law like this one, banning abortion after six weeks of pregnancy, they go into court before the law takes effect, and they sue the public officials who would be charged with enforcing the law and get an order a court order preventing them from enforcing it,” Hill said. “But that's not possible here.”
On July 13, a challenge to the law was filed in federal court by a wide range of plaintiffs including abortion providers. They sued state judges and county clerks.
“Of course, if you're going to bring a lawsuit, you need state court judges to hear the lawsuits and clerks to process the lawsuits and so on,” Hill said. “So, those clinics have sued the judges and are trying to get a court order that will prevent the judges from hearing these cases.”
Hill said an obstacle facing the plaintiffs in the case is that judges have protections from being sued.
One of the non-judge defendants in the case is Mark Lee Dickson, the director of Right to Life East Texas. He referred to the lawsuit as “ridiculous.” Texas Right to Life said the lawsuit is an “embarrassing farce” and that it was confident the suit would be dismissed.
Corbin and Hill are unsure of how the lawsuit will play out.
“I don't know what to expect,” Corbin said. “It should definitely be successful, because as I said, under the current state of constitutional law, there is zero question that this is a blatant attack on a constitutionally protected right and violates the U.S. Constitution. So, it really ought to be an open and shut case with regard to constitutionality, but because they have made it more difficult to bring a challenge, it's not quite clear how exactly this case is going to unfold.”