With very limited exceptions, the Act has at least temporarily shut down the abortion industry in Texas. Most women are not even aware of being pregnant six weeks after their last period, and most abortions performed that early are “chemical” abortions, induced by taking a regime of pills, rather than surgical procedures. Thus, one anti-abortion activist in Texas estimates that the Act will prevent about 50,000 of the approximately 56,000 annual abortions in the State. As one pro-abortion advocate put it, the “six-week ban essentially bans abortion outright”. Another abortion proponent bemoaned, “Now the issue is [abortion] providers have stopped providing”.
The Act has at least temporarily shut down the abortion industry in Texas
On the other hand, it is too soon for abortion opponents to celebrate a complete victory. While the Texas legislature ingeniously crafted the procedural aspects of the Act in such a way as to avoid the injunction, the Supreme Court did not bless the merits of the Act. And future challenges may yield a result that does, indeed, block the law from being enforced.
But why did the Texas Act survive even this preliminary challenge when all similar attempts to regulate abortion have been invalidated under the Supreme Court precedent case, Roe v. Wade? (Roe is the 1973 case that invalidated State laws that prohibited abortion.) So-called “heartbeat bills” and other restrictive laws have been challenged and defeated by abortion advocates almost as soon as they are signed into law by various governors.
Take Texas, itself, for example. In the 2016 case, Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down a Texas law that would have required abortion providers to have admitting privileges at full-service hospitals within 30 miles of the abortion facility. (In the U.S. virtually all abortions are performed at abortion clinics, unaffiliated from any legitimate hospitals or health care facilities.) And inferior federal courts have similarly barred enforcement of such laws in other States.
In all of these cases, abortion-proponents immediately sued the attorney general or other chief law enforcement officer in the State, seeking to prevent that official from executing the statutes. In each case, the federal court has enjoined that official from enforcing the law under the authority of Roe.
The Texas Act avoids this procedural pitfall by—in an unprecedented stroke—explicitly denying the attorney general the authority to enforce the Act in his official capacity. Indeed, the Act does not even create a crime, but rather a civil violation. Rather than being enforced by a state official, it establishes what attorneys call a “private case of action”, empowering ordinary citizens with the authority to bring a civil action against the abortionist and any of his abettors. If a citizen has a good-faith allegation that the Act has been violated, he may bring a civil lawsuit against the abortion provider, other clinic employees, abortion counsellors or any other person who abetted the violation. If the citizen plaintiff prevails, he is entitled to a payment of up to $10,000 from the defendants.
The Act does not even create a crime, but rather a civil violation
Because the Act expressly denies any public authority from enforcing the law, abortion advocates have no one to sue to prevent its application. Abortion provider Whole Woman’s Health tried anyway, suing a Texas State court judge in federal court. In dismissing the lawsuit, the federal court judge ruled that the State court judge has no authority to enforce the law, and thus is not a legitimate defendant. Nor is there a “case or controversy” for the federal court to decide, because no citizen has sued an abortion provider under the Act.
When Whole Woman’s Health appealed to the Supreme Court to temporarily prevent the law from taking effect pending further review, the Court declined for the same reason. As the Court put it, “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” This is the genius of the Act. For the first time, enforcement in put in the hands of citizens rather than officials. Other States are already exploring enacting similar statutes.
Notably, the Texas Act does not provide for suing the woman who has procured the abortion. That’s because the purpose of the law is not to punish people, but rather to establish a mechanism for enforcing a point of fundamental justice: protecting the lives of all people, whether in- or ex-utero. As the Catechism of the Catholic Church puts it, “From the first moment of existence, a human being [has] the inviolable right to life.” The Texas legislature recognises that a woman who believes that she must procure an abortion (or has had one), requires compassion and care, not a summons or subpoena. The motivation of the Act is to deter abortions, not to send people to jail or enrich the State.
Ken Craycraft is a Chapter House columnist.
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