Putting aside the politics of Texas’s pro-life law restricting abortion, there is no question that the legal strategy behind it was, at least in the short term, quite brilliant.
National Review’s Rich Lowry wrote a lengthy piece explaining the thought process behind the bill, which bans abortions after a fetal heartbeat is detected and empowers private citizens rather than state officials to enforce it, and he says Texas’s motivations were twofold: First, the state wanted to pass a law that would be easily defensible, and since most people would agree that a heartbeat represents life, a heartbeat bill made the most sense. Second, Texas wanted the bill to survive the courts, so they passed its enforcement down to the citizens. For procedural reasons, this makes the ban harder to challenge.
The result was a Supreme Court decision in which the majority opted out of striking down the Texas law solely for procedural reasons. The law went into effect, and abortions across the state ground to a halt without state enforcement authorities lifting so much as a finger.
Pro-life organizations in the state realized that the law was working better than anyone expected when they went to file a lawsuit against abortion providers and then realized there was no one to sue.
Lowry writes:
This was an eventuality shocking even to the most committed proponents of the bill. “And so when we get two or three days before the effective date of the law,” recalls state senator Bryan Hughes, the chief legislative proponent of the law, “we’re talking to some of our lawyers about what to do — we’re filing our first lawsuit, we can sue them. And then we realized that we can’t sue them because they’re complying with the law!”
For the time being and at least for several days, much of the machinery of abortion had ground to a halt in Texas while Roe and Casey are still on the books.
Lowry notes that the consequences for breaking the law have been enough to shut down abortive services across the state. Any abortion provider found in violation of the law would be required to pay at least $10,000 for each illegal abortion performed, as well as court costs and attorneys’ fees. And there’s the chance that abortion providers found in violation of this law could be held criminally liable under Texas’s preexisting abortion bans if the Supreme Court does overturn Roe v. Wade. That’s a costly rule-break, one that most pro-choice advocates aren’t willing to pay for — at least, not yet.
It’s only a matter of time before an abortion provider in the state purposefully breaks the law, inviting a civil lawsuit from an individual or a pro-life organization, in order to push the case to the courts in the hopes that the law will be struck down. I tend to believe the abortion provider would prevail in this case, unless the Supreme Court decides to do its job and strike down Roe v. Wade and Planned Parenthood v. Casey instead.
But in the meantime, Texas has effectively banned abortion without having to wield the heavy hand of enforcement. Even if this ban lasts for a short amount of time, think of how many lives Texas might have saved. That’s a remarkable accomplishment, one that should give the pro-life movement hope that legal success is possible.
