The Weak Spots in the Texas Abortion Ban Can be Easily Fixed

Pro-lifers are excited by the Supreme Court’s decision to refuse an injunction against enforcement of Texas’s new ban on abortions after six weeks of gestation. But notably, the Supreme Court’s conservative majority also noted that the novel nature of the statute raised new constitutional questions.

In short, the controversy created by Texas Heartbeat Act is not settled. It is just beginning.

How It Works and Why It Has Not Been Enjoined

What is most unique about the Texas Heartbeat Act is that it relies entirely on “private enforcement.” It bans abortions whenever a fetal heartbeat can be detected by ultrasound but also forbids enforcement by state officials. Instead, the statute only allows “private enforcement,” civil suits brought by individuals, not the state. This feature has precluded interference by the federal courts, at least for now.

Why? Two reasons.

First, civil suits under state law are not normally subject to federal judicial review. They are matters of state law, not federal law.

Second, the only reason abortion providers ever had standing to seek injunctions against state abortion regulations is because they have always been able to allege being “threatened” with loss of license or criminal penalties by state officials. In these cases, they can actually name the state official (the attorney general, for example) who is authorized to prosecute them or seize their medical licenses. But the Heartbeat Act forbids state enforcement. So there is no “threat” from state officials and no specific person they can name as the defendant in their suits. Since the statute allows private enforcement by any adult, it is impossible to name all possible defendants who may “threaten” their abortion businesses.

This is why the Supreme Court, and the lower courts, were right in turning away preemptive injunctions sought by Texas abortion providers. In essence, the abortion advocates were asking the federal courts to preemptively deny any and all future plaintiffs the right to present their arguments in court. That is unfair. But the lack of due process is also why the law has not been upheld as constitutional. Essentially, abortion providers in Texas have been told: “When and if you are ever sued, then the federal courts will consider the constitutional arguments from both sides.”

Fixing the Two Weaknesses in the Texas Law

In the meantime, states looking a replication of the Texas Heartbeat Act should consider fixing its two major weaknesses.

First, the Texas Heartbeat Act only impacts abortions after detection of a heartbeat, approximately six weeks into gestation. As a result, while abortion clinics are accepting fewer patients they are continuing to perform unsafe, unwanted, and unnecessary abortions.

Second, the statute does not place any limitation on plaintiffs. It allows literally any adult (other than state employees) to bring a suit against anyone conducting or aiding in an inducement of abortions after a heartbeat could be detected. The plaintiff does not even need to be a resident of Texas.

Moreover, it would appear that multiple plaintiffs could bring separate suits against the same defendant regarding the same abortion(s). The law only the first plaintiff who wins a suit to be awarded the minimum of $10,000 in damages for each abortion. But that does not preclude multiple plaintiffs from simultaneously racing through the court process in an effort to be the first to win their case.

When you think about it, this is the feature most likely to be struck down as unconstitutional. Even the judges are most dissatisfied with the reasoning in Roe are likely to agree that unfair to expose a doctor to an unlimited number of lawsuits from an unlimited number of out of state strangers, none of whom have any connection the patient or the doctor. Surely, there should be some limitation on who can bring suit. And most preferably, that limitation should be associated with the patient (mother and/or child) undergoing the abortion.

The solution to both weaknesses comes in two parts.

First, standing to bring suit should be limited to either:

1. the women who are seeking or have obtained an abortion,
2. the survivors of such women who are deceased, including women who died from suicide or accidents that may have been associated with risk taking behaviors aggravated by the abortion loss, or
3. the fathers of the children who are aborted or threatened with abortion, especially when they can present evidence that the mother’s consent was not fully informed, free of duress, or properly advised regarding the risk versus the benefits of abortion and childbirth.

Limiting the pool of plaintiffs in this manner eliminates the complaint that private enforcement exposes abortion providers to an unlimited number of litigants. Moreover, the woman, her survivors, and the father of child all have a strong foundation for arguing that they have been harmed by the abortionist’s actions or omissions. There is little or no chance that a federal court will decide that doctors have a constitutional right to be protected from lawsuits of their patients or survivors.

Secondly, the law should explicitly expand women’s rights to redress to include a right to sue for both medical negligence and the wrongful death of their unborn child when either:

1. her consent was not fully informed,
2. her consent was influenced by duress (either by pressures of circumstance or by other people), or
3. a review of risk factors associated with negative emotional or physical complications associated with abortion relevant to the individual woman indicate that either (a) the likely medical benefits of abortion are not greater than the benefits of continuing the pregnancy, and/or (b) the risks associated with abortion and are equal to or greater than the risks of continuing the pregnancy to its natural outcome.

Most of these features are included in our model bill, The Prevention of Coerced and Unsafe Abortions Act. Other features included in our model bill include extending the statute of limitations, allowing women to sue up to four years after they have begun to heal from the emotional effects of the abortion. In addition, it allows women to sue for reckless endangerment whenever an abortionist proceeds with recommending an abortion that is likely to be unsafe, unwanted or unnecessary abortion, even if the woman ends up refusing the contraindicated abortion.

Our model bill retains the most important feature of the Texas Heartbeat Act: private enforcement. In addition, it covers all abortions, not just those six weeks of gestation.

Most importantly, while it reduces the number of potential plaintiffs, it vastly increases the amount of damages women can be awarded. It specifically allows for the wrongful deaths of aborted children, plus attorneys fees.

Strategically, it also denies abortionists the argument that they are defending women’s access to safe abortions. Pro-abortion lawyers cannot appeal to the theory that abortion providers are the ones representing the interests of women seeking abortions. They will be facing a real plaintiff, a woman who has been injured by an unsafe, unwanted, or unnecessary abortion. It is not the theory that women should be able so seek an abortion that is at issue. The issue is whether the abortions failed to fully identify the risks of abortion in each unique case, and/or failed to fully inform the patient of those risks, and/or failed to recommend against an abortion that posed more risks than benefits.

Moreover, our model bill makes it far easier for women to bring and win suits for medical negligence by putting the standard of care for screening and counseling into statute. The standard of care will no longer be whatever abortion providers decide. It will be defined by law, and will include clear standards for screening, counseling and risk/benefits assessments.

Through these steps our model statute forces the courts and abortion providers to actually engage with the overwhelming body of medical evidence that proves two thing: (1) there are literally no studies showing psychological or physical benefits from abortion, and (2) there is overwhelming evidence that abortion is associated with both higher rates of negative emotions and mental illnesses and also elevated risk of premature death.

In short, there is no evidence based justification for informed physicians to ever recommend an abortion. The known risks are always greater than the hoped for benefits. The only reason there are so many abortions is because abortionists have not previously been held liable for evading their own duty to undertake accurate risk vs benefits assessments. They are simply providing abortions on request, regardless of the risks, even when women are being coerced into unwanted and unsafe abortions. There is no constitutional argument for denying women the right to recover damages for such negligence.

Appeal to Pro-Life Lobbyists and Legislators

The private enforcement features of the Texas Heartbeat Act have caught your attention. Rightly so. Private enforcement is more difficult, and perhaps impossible to enjoin at the federal level.

But allowing an unlimited number of lawsuits from any adult not employed by the state is likely too broad and at risk of being found unconstitutional.

On the other hand, expanding the right to redress for abortions for women, their survivors, and the fathers of aborted children is more clearly drawn to parties with an undeniable interest in holding abortionists accountable for unsafe, unwanted, and unnecessary abortions.

We encourage any and all lobbyists and legislators considering new abortion regulations to consider including features from our Prevention of Coerced and Unsafe Abortions Act. If you’re not a lobbyist or legislator, find one with whom you can share this this recommendation!

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