Don't despair. The Texas fetal heartbeat law can be beat

Ultrasound at 6 weeks.

It seems that the entire print and cable pundit class, not to mention every legal “expert” I’ve seen interviewed, has thrown up its collective hands in surrender to the enormity of the cleverness of the Texas legislature.

You know what I’m talking about:  the brand new Texas anti-abortion  law that forbids abortions after a fetal heartbeat is present, about six weeks after a woman becomes pregnant.  Everyone agrees that the law is unconstitutional on its face, but the reason everyone seems to be in a state of retreat is because the way the law was written appears not to leave anyone to sue to stop the law from taking effect.

In fact, to my knowledge, no lawsuit has yet been filed seeking an injunction to stop the law beyond the one the Supreme Court just smacked down in a 5-4 “shadow docket” decision that was a single paragraph in length.  This is apparently because of the allegedly “clever” way the Texas legislature wrote the law. 

The way every other anti-abortion law has been written in Texas and elsewhere, enforcement has been the job of the senior legal officials of the state – normally the governor and/or attorney general of whatever state has enacted the anti-abortion statute.  To enjoin the law from going into effect, these legal officials are sued in federal court, and the federal courts almost without exception have given injunctive relief to the plaintiffs because the 1973 Supreme Court decision making abortion legal, Roe v Wade, is and has been for nearly 50 years the law of the land. 

Most state laws attempting to restrict access to abortion or make it effectively illegal have run afoul of the Roe decision in one way or another.  Because the court classified the right of a woman to choose to have an abortion as “fundamental,” all laws seeking to limit that right must be evaluated under the so-called “strict scrutiny” standard, the highest standard of judicial review and the most difficult to overcome.  This is why, for example, a Texas law passed in 2016 requiring abortion doctors to have hospital admitting privileges, and abortion clinics to meet strict hospital standards such as the width of hallways and medical equipment required to be on hand, was found unconstitutional.  The court found the Texas restrictions imposed an “undue burden” on the fundamental right of a woman to choose to have an abortion.  The lawsuit resulting in this decision was filed against the senior law enforcement officials in Texas, the governor and attorney general.

The new Texas law restricting abortions to the six-week limit specifically commands that enforcement of the law must not be carried out by the officials traditionally charged with that duty.  Instead, the law leaves enforcement of the six-week abortion rule up to “members of the public” who are allowed to sue anyone who participates in an abortion after a fetal heartbeat can be detected at about six weeks.  The law allows suits against abortion doctors, clinics, staff, counselors who provide information, lawyers, people helping to pay for an abortion, and even persons providing transportation to the clinic where the allegedly illegal abortion is performed.  The only person who cannot be sued is the woman on whom the allegedly illegal abortion is performed.

The law allows pay-outs of $10,000 plus court costs and lawyers fees to anyone who wins such a lawsuit against an abortion provider or anyone who assists with the abortion.  The new law specifically forbids courts from ordering that the lawyers fees of defendants be paid by plaintiffs who lose their cases.  Anyone is permitted to file one of these lawsuits, including people who do not know the woman seeking the abortion or have any interest in her pregnancy.  The law even goes so far as to permit lawsuits by persons not residing in Texas.

See how “clever” those wily Texas legislators were?  You can’t sue to stop the new Texas law because there is no Texas official to sue!  You can’t sue the governor, or the attorney general of the state, or even local district attorneys because they are not charged with enforcing the law.

There’s the alleged dilemma that’s causing all the consternation, folks.  With no one to sue, what are people to do who seek to protect a woman’s right to choose?

Well, I’m here to offer a modest suggestion.  The Texas law is being called the “vigilante” law because the private citizens empowered to file law suits against abortion providers are the vigilantes seeking the $10,000 award if they win.  The $10,000 is even being called a “bounty.”

A vigilante is a private citizen who attempts to enforce laws or customs by punishing the offender outside the boundaries of the law.  I say these people are not vigilantes; they are agents of the state empowered to enforce the Texas “heartbeat” law by the legislature of the state which authored the law and by the Texas governor who signed the law.  In effect, they have been deputized by the state of Texas as individual law enforcement officers.  The governor and the legislature may as well go around and hand out Texas Ranger badges, because that’s what they have effectively turned the citizenry into.

So who can you file a lawsuit against to stop the law?  Anyone who acts in the capacity of a law enforcement official by filing a lawsuit seeking to stop an abortion or punish a person aiding and abetting one.  The lawsuits can be filed in federal court against these mock-deputies of the state of Texas for conspiring to violate the constitutional right of the woman who decided to have the abortion, and for violating the civil rights of anyone who assisted in the abortion. 

Among the rights being violated might be, in the case of the proverbial “Uber driver” the right to carry out the free and fair trade of his or her business.  The right to privacy of others may be said to have been violated by the plaintiff filing the suit who would have had to conduct surveillance in order to prove that a defendant was involved in the abortion.  The right to free speech of a counselor would be violated by a plaintiff alleging that he or she had provided perfectly legal information to a woman seeking an abortion under Roe v Wade.  The right to privacy of the woman who is alleged to have received an illegal abortion would be violated by anyone who gained access to private medical information that would purport to “prove” that a heartbeat could be detected and thus the woman had passed the six-week limit imposed by the law. 

The collection of proof involved in these vigilante lawsuits is the biggest problem they face.  How are they going to prove there is or isn’t a heartbeat?  With an ultrasound?  Who is going to order this procedure, which in order to listen to a very new fetus is usually performed vaginally, thus becoming an invasive procedure.  Are they going to get a court order to insert an ultrasound wand inside the vagina of a woman?   Blood tests using needles are similarly invasive.  Who is going to order these tests?  Who is going to conduct them?  How are they going to provide a plaintiff with private medical information that is protected as private by federal laws?

As many federal lawsuits could be filed as there are so-called “vigilantes” suing abortion providers and those who assist them.  Perhaps if those seeking the big $10,000 pot of gold at the end of the vigilante rainbow are faced with the prospect of a judgement against them of $1 million or more a federal court finding that they have violated civil and constitutional rights of abortion providers, staff, assistants, counselors, “Uber drivers” and others, they will think twice before they give a yank on the shiny new one-arm-bandit of the Texas legislature.

I’m not a highly-paid legal “expert” on MSNBC, but unless I miss my guess, the federal courts in Texas and elsewhere will not be happy if they are suddenly deluged with lawsuits seeking relief from the yahoos trying to game the system in Texas by filing suits in state courts under the new Texas anti-abortion law.  I wouldn’t be at all surprised if the Supreme Court itself got a little perturbed if suddenly their precious “shadow docket” were buried under a pile of appeals from federal suits against the Texas “vigilantes.”  Judges don’t like messy dockets.  They especially don’t like being forced to work the extra hours that would be necessary to deal with the massive quantity of federal lawsuits which might result from this madness.

Until the Supreme Court hears the Mississippi abortion case seeking to overturn Roe v Wade and decides whether or not to accept their arguments and overturn Roe, that decision stands as the law of the land.  The Texas “vigilante” anti-abortion law is a naked attempt to get around that decision and deny women a right found to be “fundamental” under Roe.  It’s not even a very smart naked attempt.

The way you fight bad people with bad ideas is with good people and good ideas.  The ACLU and the Center for Reproductive Rights and Planned Parenthood and NARAL Pro Choice America and the National Organization for Women and any number of other liberal organizations must have a whole passel of lawyers as “clever” as those in the Texas legislature.  The faster they get busy, the better. 

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