Lawsuit Takes Aim at Citizen-Enforced Texas Abortion Law

A coalition of abortion providers and their supporters filed a federal lawsuit on Tuesday to challenge a new Texas law that would allow individuals to sue abortion clinics, doctors and anyone helping a woman get an abortion in the state.

The unusual provision, which passed the State Legislature this spring, was part of a bill that bans abortion after a doctor detects a fetal heartbeat, usually around six weeks of pregnancy. It effectively allows ordinary people, including those outside Texas, to sue clinics and others who violate the law, and to potentially be awarded at least $10,000 per illegal abortion if they are successful.

Many states have passed six-week abortion bans, and abortion rights supporters have successfully challenged them in court by suing government officials charged with enforcing the laws, often in the state’s executive branches. But the ban in Texas prevents those state officials from enforcing it, posing unique legal challenges to abortion rights supporters who want to stop the law from taking effect on Sept. 1.

“We had to devise a unique strategy to fight this subversive law,” Nancy Northup, the president and chief executive of the Center for Reproductive Rights, one of the groups representing plaintiffs in the case, said in a statement. “We will pursue every legal avenue we can to block this pernicious law.”

The plaintiffs — who are led by Whole Woman’s Health and include clinics, doctors and clergy, as well as groups that help women pay for abortions — are instead suing a wide range of defendants who could be involved in the enforcement process. Those include judicial branch officials like every state court trial judge and county clerk, and leaders of groups like the Texas Medical Board, the Texas Board of Nursing and the Texas State Board of Pharmacy.

It is unclear how, exactly, this strategy will play out. The group is suing judicial officials instead of executive ones because there is no one else to sue, not because the judges and clerks are considered bad actors, said Stephen Vladeck, a constitutional law professor at the University of Texas at Austin.

Judges may at once be put off by the notion that they are defendants, he said, and yet at the same time be troubled by the notion that a state could pass such restrictive anti-abortion measures and prevent those affected from being able to challenge them.

“Behind those procedural questions is a fairly fundamental question about whether states really can dramatically infringe constitutional rights and leave the victims without a remedy,” Professor Vladeck said. “If Texas can do this for abortion, then tomorrow California can do it for guns.”

The Texas case is the latest high-stakes battle over abortion in the United States, and comes with potential national implications. Ultimately what is at stake is the six-week abortion ban itself, which if enforced would be the earliest abortion ban in the country.

Many women do not know they are pregnant before six weeks, and, according to a joint statement about the lawsuit from groups that support abortion rights, about 85 percent of women who obtain abortions in Texas do so after about six weeks of pregnancy.

“What happens in Texas when it comes to anti-abortion strategy and anti-abortion regulation unfortunately doesn’t stay in Texas,” said Amy Hagstrom Miller, the president and chief executive of Whole Woman’s Health and Whole Woman’s Health Alliance. Whole Women’s Health operates four clinics in the state.

Some of the most significant abortion laws in the country started in Texas, she said, including Roe v. Wade, the 1973 ruling that established federal protection for abortion, and the Whole Woman’s Health decision in 2016, when the Supreme Court struck down part of a Texas law that could have drastically reduced the number of abortion clinics in the state.

“Texas is grounds both for anti-abortion restrictions and also for some of the biggest wins against those restrictions that we’ve seen in the country,” Ms. Hagstrom Miller said.

The law comes as abortion rights opponents have intensified their legal strategy in recent years, passing restrictions in state legislatures with the frequent goal of defending them at the Supreme Court. The makeup of the nation’s highest court has recently shifted to give conservatives a solid majority, following the confirmation of three new justices appointed by former President Donald J. Trump.

More abortion restrictions have been signed in a single year in the 2021 legislative season in the United States than in any other year since Roe, according to the Guttmacher Institute, which tracks abortion statistics and supports abortion rights.

John Seago, legislative director for Texas Right to Life, the largest anti-abortion organization in the state and a group involved in the legal strategy behind the law, called the lawsuit “a desperate legal move.”

“There is no reason to believe that this state judge is violating any federal laws or violating the Constitution by simply having jurisdiction over a lawsuit that the State of Texas has authorized,” he said. “Don’t miss the point of this bill: The point of the bill is that abortions are stopped after six weeks.”