In Texas, abortion advocates have spent all summer preparing for Sept. 1: the day abortions across the state will essentially become illegal.
Republican Gov. Greg Abbott signed Senate Bill 8 into law in May, banning all abortions after six weeks of pregnancy, before most people know they are pregnant. These kinds of bans, known as “heartbeat bills,” are familiar. Passed in 12 states, they tend to attract a flurry of media attention before they are struck down in court a few weeks later. But while the Texas law is unconstitutional under Roe v. Wade, both sides say it won’t be as easy as others to challenge. Some are fully expecting the law to take effect.
“We are assuming the worst,” said Amanda Beatriz Williams, executive director of the Lilith Fund, the oldest abortion fund in Texas, which provides financial support to people who cannot afford abortion care. Lilith has been meeting regularly with abortion clinics and funds across the state, she said, hashing out how they will respond if Texas clinics can no longer provide abortions after six weeks.
Lawsuits set up to challenge abortion bans and other restrictions often follow a similar blueprint. The plaintiff, usually an abortion provider, sues whoever is charged with enforcing the law, typically the state attorney general or the state health commission. Because the plaintiff can anticipate who will enforce the law, they can sue and stop the law before it ever takes effect, appealing to district and circuit courts that almost always uphold Roe v. Wade.
Unlike any other antiabortion restriction, though, the Texas law can be enforced by almost anyone. Any individual in the country will be able to sue any person or organization that helps a Texan access abortion after the six-week limit, opening the door to a slew of lawsuits. The “enforcement mechanism” is intentionally unclear, said John Seago, legislative director of Texas Right to Life, an antiabortion organization that helped draft Senate Bill 8: If no specific individual or institution is tasked with enforcing the law, he said, there is no one to sue.
“How do you stop an undefined enforcer?” Seago said. “They can’t say where the attack is going to come from.”
Planned Parenthood, the Center for Reproductive Rights and the American Civil Liberties Union filed a lawsuit in federal court in July, on behalf of a group of Texas abortion providers and other abortion rights organizations. The lawsuit takes an unconventional approach, targeting every state trial court judge and county clerk in the state — who could be tasked with enforcing the law — in addition to the attorney general, the state health department and Mark Lee Dickson, the director of Right to Life of East Texas, who has encouraged people to take legal action against abortion clinics on social media.
Imani Gandy, an attorney and journalist who supports abortion, called the lawsuit “bonkers.”
“It is incredibly rare for lawyers to file a lawsuit against a class of hundreds of defendants,” she wrote in an article for Rewire News Group. But in this case, she said, abortion rights groups had no choice. “They must be able to sue someone.”
Seago said the abortion advocates’ lawsuit doesn’t make any legal sense. Until a case is filed in a particular jurisdiction, he said, judges and clerks from counties across the state have nothing to do with this law.
“This is a pretty desperate move,” he said. “It’s like they’re trying to put enough tools on the table before the judge and just hoping he’ll find one that fits.”
Adriana Piñon, a senior staff attorney at the ACLU of Texas, disputed that assessment. The ACLU is “optimistic” that the case will be heard, and the law overturned, before Sept. 1, she said.
If the law does take effect, as Seago expects it will, the number of abortions in the state of Texas will probably plummet. Patients will have to drive 20 times farther for abortion care, according to a report from the Guttmacher Institute.
Up until now, Seago said, clinics have been noticeably silent about their plans come September. While most of the 17 abortion clinics in Texas belong to a national organization — either Planned Parenthood or Whole Woman’s Health — many are independent, free to determine their own path forward. Some clinics might decide to continue providing abortions after six weeks, despite the law, he said, inviting a wave of lawsuits from antiabortion activists who recognize the violation.
These lawsuits are likely to affect many different people and institutions involved in abortion care, said Aimee Arrambide, executive director of Avow, an abortion rights legal organization in Texas. Smaller, independent organizations, such as abortion funds and even advocacy groups like Avow, could be bankrupted by lawsuits.
The Texas law could have significant implications for the rest of the country, Arrambide added. Antiabortion groups and legislators in other states will be watching closely to see how this plays out, she said: If Senate Bill 8 withstands the legal challenge, other states may take a similar approach during the next legislative session, tweaking the law as necessary to make it stronger.
For the past few years, Seago said, it has been frustrating to see so many conservative states pass robust antiabortion restrictions — and then to have those restrictions so quickly struck down.
Watching how difficult it’s been for abortion rights advocates to challenge this law, Seago said, antiabortion advocates “really feel like we’re turning a corner.” Seago is also encouraged by the Supreme Court’s recent decision to hear a case on Mississippi’s 15-week abortion ban, an opportunity for the court to decide whether states should be able to ban abortion before viability.
“There is a lot of energy right now on the pro-life side,” Seago said. “The game is about to change.”