The Supreme Court of Texas recommended Friday a lawsuit challenging the state’s “heartbeat” abortion ban should be dismissed since it is enforced by “private civil action,” and not state officials.
Justice Jeffrey S. Boyd wrote in the decision regarding the case of Whole Woman’s Health v. Jackson, that state officials, such as medical licensing boards, cannot enforce the law that bans abortions once a fetal heartbeat can be detected:
Senate Bill 8 provides that its requirements may be enforced by a private civil action, that no state official may bring or participate as a party in any such action, that such an action is the exclusive means to enforce the requirements, and that these restrictions apply notwithstanding any other law. Based on these provisions, we conclude that Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly.
The Texas Heartbeat Act (Senate Bill 8) contains a unique enforcement mechanism that allows any private citizen to file a civil lawsuit against an abortion provider or any other individual who “aids or abets” a “criminal abortion.” Any individual found to have assisted an abortion after a fetal heartbeat is detected can be penalized at least $10,000 in statutory damages plus costs and attorneys’ fees.
Additionally, it is unlawful in Texas to provide the means for obtaining an abortion, “knowing the purpose intended,” unless the mother’s life is in danger. Individuals convicted of funding abortions face 2 to 5 years in prison for each abortion they either paid for or helped to bring about in other ways.
The U.S. Supreme Court allowed the Heartbeat Act to stand while lawsuits against it continued, and then later dismissed the Biden administration’s challenge to the law, but ruled the abortion providers’ lawsuit may continue in the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit then asked the Texas Supreme Court to respond to the question of whether state agencies have a role in enforcing the Texas Heartbeat Act.
“We answer the Fifth Circuit’s certified question ‘No,’” the Texas Supreme Court responded in its ruling.
The Center for Reproductive Rights, which assisted in bringing the lawsuit against the law, referred on Twitter to the Heartbeat Act’s private enforcement mechanism as a “bounty-hunting scheme,” but acknowledged in a statement the Texas Supreme Court’s ruling in the case “effectively ends the federal court challenge” to the law.
A #Texas Supreme Court ruling means that our case against #SB8 will be thrown out, and the ban will remain in effect—including the bounty-hunting scheme that puts a $10K bounty on anyone who provides an abortion after 6 weeks or helps someone obtain an abortion past that point.
— Center for Reproductive Rights (@ReproRights) March 11, 2022
“In today’s decision, the Texas court ruled that state licensing officials do not have the authority — directly or indirectly — to take enforcement action based on violations of S.B. 8, leaving no other defendants against whom the case can proceed,” the abortion advocates said in the statement. “As a result, the ban will stay in effect.”
Nancy Northup, CEO of the organization said the ruling amounts to “a moment of crisis not only for reproductive rights but for our justice system and the rule of law.”
“With this ruling, the sliver of this case that we were left with is gone,” she continued. “An unconstitutional ban on abortion after six weeks continues unchecked in the state of Texas. The courts have allowed Texas to nullify a constitutional right. We will continue to do everything in our power to right this wrong.”
While acknowledging the conservative-leaning Fifth Circuit still will review the Texas Supreme Court’s opinion, Texas Right to Life Director of Media and Communication Kimberlyn Schwartz celebrated the ruling as “a big victory for the life-saving Texas Heartbeat Act!”
The Texas Heartbeat Act WINS again in court! This isn't the final step, but today's opinion sets the law on a positive path forward.
— Texas Right to Life (Text ProLife to 40237) (@TXRightToLife) March 11, 2022
“We have said from the beginning that the abortionists’ lawsuit should be dismissed, and we’re grateful that the Texas Heartbeat Act will continue saving thousands of lives,” Schwartz added.
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Susan Berry, PhD, is national education editor at The Star News Network. Email tips to [email protected]