Abortion Backers Sue to Block Texas Law Allowing Private Lawsuits Against Those Who Help Obtain Procedure

ultrasound fetal heartbeat
Jennifer Jacobs/AFP/Getty Images
Dr. Susan Berry

A coalition of Texas abortion providers filed a class action federal lawsuit Tuesday that seeks to block the new Texas Heartbeat Act from taking effect on September 1.

The plaintiffs include ten abortion facilities, five abortionists and pro-abortion faith leaders, as well as six organizations that provide funding for abortions.

S.B. 8, signed into law by Gov. Greg Abbott (R) in May, bans abortions once a fetal heartbeat can be detected, and allows private citizens to sue any individual who seeks to assist a woman in obtaining an abortion after a heartbeat is detected.

Other states have passed “heartbeat” bills and, once signed, abortion rights activists filed lawsuits challenging them. Subsequently, courts have blocked these laws, ruling they are unconstitutional in light of the Supreme Court’s 1973 ruling in Roe v. Wade and subsequent decisions.

The Texas measure, however, contains a unique enforcement mechanism whereby any private citizen may file a civil lawsuit against an abortion provider or any other individual who “aids or abets” a “criminal abortion.”

The law’s civil enforcement mechanism limits actions taken to violations of the “heartbeat” ban, i.e., abortions sought after a fetal heartbeat is detected.

Additionally, lawmakers adopted an amendment that blocks individuals who impregnated a woman through rape, sexual assault, or incest from challenging an abortion through a lawsuit.

As Texas Right to Life explained in a statement, S.B. 8’s private enforcement mechanism is unique in that it “does not rely upon the state attorney general, district attorneys, the Texas Medical Board, or any other government agency in Texas for enforcement.”

The pro-life organization added:

Instead, Senate Bill 8 authorizes individual Texans to file lawsuits against abortionists, abortion facilities, or anyone who aids or abets an abortion in violation of the law. Since none of these lawsuits can be brought until September 1, the abortion industry filed this lawsuit against representatives of classes of individuals who might be involved in future suits.

The lawsuit claims:

S.B. 8 purports to bar government defendants—such as the attorney general, local prosecutors, and the health department—from directly enforcing the law’s terms. Instead, the Act deputizes private citizens to enforce the law, allowing “any person” other than government officials to bring a civil lawsuit against anyone who provides an abortion in violation of the Act, “aids or abets” such an abortion, or intends to do these things. These civil suits are permitted regardless of whether the person suing has any connection to the abortion.

Alexis McGill Johnson, CEO of Planned Parenthood, said in a statement the new law amounts to “giving complete strangers the power to sue anyone who provides or helps someone get an abortion.”

“This new law would open the floodgates to frivolous lawsuits designed to bankrupt health centers, harass providers, and isolate patients from anyone who would treat them with compassion as they seek out health care,” she added, referring to the law as an example of “cruelty.”

However, Texas Right to Life Legislative Director John Seago responded the lawsuit is “a desperate measure by an industry that has admitted they do not fully know how to fight such an innovative and unique Pro-Life law.”

S.B. 8 states, in part:

Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who: (1) performs or induces an abortion in violation of this chapter; (2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this chapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this chapter; or (3) intends to engage in the conduct described by Subdivision (1) or (2).

Private citizens who prevail in such lawsuits can be awarded, according to the law, “statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this chapter, and for each abortion performed or induced in violation of this chapter that the defendant aided or abetted.”

Mark Lee Dickson, director of Right to Life of East Texas and the founder of the Sanctuary Cities for the Unborn Initiative, is named in the lawsuit.

Dickson’s campaign invites cities and towns to approve and enact ordinances that declare themselves “Sanctuary Cities for the Unborn” by outlawing abortion within their limits.

The initiative now includes 33 such cities, 30 of them in Texas, that have enacted ordinances with two “enforcement mechanisms,” one public and one private.

While the public enforcement mechanism relies on the U.S. Supreme Court overturning Roe v. Wade, the private mechanism is “immediately enforceable,” he wrote recently.

The private enforcement mechanism in Lubbock, Texas, for example, states:

Any person, corporation, or entity that commits an unlawful act … other than the mother of the unborn child that has been aborted, shall be liable in tort to the unborn child’s mother, father, grandparents, siblings and half-siblings. The person or entity that committed the unlawful act shall be liable to each surviving relative of the aborted unborn child for: (a) Compensatory damages, including damages for emotional distress; (b) Punitive damages; and (c) Costs and attorneys’ fees.

Texas Right to Life stated Dickson is named in the lawsuit “because of comments on Facebook indicating that he is interested in filing lawsuits and helping other Pro-Life Texans file lawsuits against the abortion industry if they violate Pro-Life policies.”

“This seems to be nothing more than the legal bullying of a grassroots Pro-Life activist who has spearheaded the movement to assist Texas cities pass local Sanctuary City for the Unborn ordinances,” the pro-life organization asserted.

Dickson reacted to the lawsuit on Facebook:

Today several who desire to end the lives of precious babies with heartbeats sued myself and others over the Texas Heartbeat Act. The only thing more ridiculous than this lawsuit is the fact that we have people, right here in Texas, who are fighting to end the lives of innocent unborn children.

Seago referred to the lawsuit by abortion providers as “far-reaching and distorted.”

“We still have the utmost confidence in the innovative legal strategy and carefully drafted nature of SB 8 and we fully believe this Pro-Life Priority will ultimately be upheld and save countless preborn lives,” he added.

The case is Whole Women’s Health v. Jackson, No. 1:21-cv-00616 in U.S. District Court for the Western District of Texas.

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