The Heartbeat Act is unique because it expressly denies any Texas law enforcement officer the authority to enforce it. Rather, the law creates a private cause of action, allowing any person to bring a civil lawsuit against anyone who performs or abets such an abortion, except the woman procuring it. And, of course, some of the abortions that the Heartbeat Act prohibits are clearly “unconstitutional” under Roe v. Wade, the 1973 case that prevents enforcement of State’s prohibitions of abortion.
Neither of these cases consider the substance of the Heartbeat Act, and thus will not directly address Roe v. Wade (Another case, Dobbs v. Jackson Women’s Health, will be heard on 1st December, directly addressing the validity and continuing vitality of Roe. Watch this space for analysis of that argument.) The issues in the 1st November cases are, rather, who can sue and who can be sued to prevent the Act from being enforced?
The law creates a private cause of action, allowing any person to bring a civil lawsuit against anyone who performs or abets such an abortion
As it stood on 1st November, and until the Supreme Court rules, the Texas Heartbeat Act is enforceable. In both cases, the petitioners want the Court temporarily to enjoin enforcement while the merits of the law are adjudicated in inferior courts. The Court could enjoin enforcement of the law temporarily while it deliberates, or it could let the law continue to be enforceable until it hands down its decision as to whether either or both of the abortionists or the United States can proceed with its lawsuits to invalidate the Act.
The first 1st November case, Whole Women’s Health v. Jackson, seeks to allow abortionists to sue Texas State court clerks to prevent them from accepting lawsuits under the Act and to prevent judges from hearing them. If they are successful, of course, the Act would have no effect. In other words, as several lines of questions went in oral argument, can the abortionists get “pre-enforcement” relief, by preventing lawsuits even being filed under the Act.
In the second case heard on 1st November, United States v. Texas, the federal government wants the Court to permit it to sue the State of Texas, and anyone acting on the State’s behalf, to prevent anyone even from bringing a lawsuit under the Act. Again, if the federal government could file and win such lawsuits, the Act would be feckless. An attorney for the United States argued that any citizen who brings a lawsuit under the Act is effectively an agent of the State of Texas. Under applicable Supreme Court precedent, the attorney contended, this would permit the federal government to sue the anyone who would try to sue under the Act.
While it is always risky to draw conclusions from oral argument, at the end of about three hours of arguments by lawyers for both sides, it appeared possible that the Court would allow the abortion providers to pursue their lawsuits in the trial courts. But it seemed as though the United States’s argument was not as well received by the Court.
Simply put, a majority of the nine justices did not seem to be persuaded that a private party who brings a lawsuit under the Heartbeat Act would be acting as an agent of the State of Texas
As to Whole Woman’s Health, the Court seemed sympathetic to the abortionist’s arguments for at least two reasons. First, a majority agreed that removing the authority of enforcement from State officials to private citizens appeared to be solely to prevent the protection of a “right” that is protected by Supreme Court precedent. Secondly, some justices expressed concern that the same manoeuvre of removing enforcement of a constitutional right to private individuals could apply to any other such right that a particular State legislature did not like. As one justice put it, “There’s nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don’t like, go ahead” and pass laws against them.
The Court did not seem sympathetic to the federal government’s argument in United States v. Texas, however. Simply put, a majority of the nine justices did not seem to be persuaded that a private party who brings a lawsuit under the Heartbeat Act would be acting as an agent of the State of Texas any more than that party would be if he brought any other kind of tort action against another private party. If I sue my neighbor for damaging my house, for example, I am not acting as an agent of the State. Therefore, the federal government cannot sue my State to prevent me from filing my lawsuit. (Of course, if the Court rules in favor of the abortionists, the effect of preventing enforcement of the Heartbeat Act would be accomplished anyway.)
As noted above, drawing conclusions from oral argument is tricky. Often justices will ask questions as devil’s advocates, and it is not always clear if they are expressing their own misgivings or inclinations. And regardless of what happens in these two cases, the substance of the Texas Heartbeat Act will stand or fall under the Court’s decision in Dobbs v. Jackson Woman’s Health, to be heard on 1st December. The eyes and ears of the nation will be on that case perhaps like no other time in the Court’s history.
Ken Craycraft is a Chapter House columnist.
This page is available to subscribers. Click here to sign in or get access.
Having been unable to sell in churches for well over a year due to the pandemic, we are now inviting readers to support the Herald by investing in our future. We have been a bold and influential voice in the church since 1888, standing up for traditional Catholic culture and values.
Please join us on our 130 year mission by supporting us. We are raising £250,000 to safeguard the Herald as a world-leading voice in Catholic journalism and teaching. For more information from our chairman on contributing to the Herald Patron's Fund, click here
Donors giving £500 or more will automatically become sponsor patrons of the Herald. This includes two complimentary print/digital gift subscriptions, invitations to Patron events, pilgrimages and dinners, and 6 gift subscriptions sent to priests, seminaries, Catholic schools, religious care homes and prison and university chaplaincies. Click here for more information on becoming a Patron Sponsor. Click here for more information about contributing to the Herald Patron's Fund