Those outside Texas can enforce state's 'heartbeat' abortion law, a game-changer for pro-life cause

FORT WORTH, Texas — It is a coincidence that Texas Gov. Greg Abbott signed into law a novel fetal heartbeat bill in the same week that the U.S. Supreme Court agreed to take up a major review of American abortion laws.

But to pro-lifers, the happy concurrence adds to the sense that after the lawful holocaust of 60 million human beings over the last five decades, the earth beneath the pro-abortion movement is finally beginning to give.

That feeling is especially palpable in Texas, which produced the case that led to the seminal Supreme Court decision in Roe v. Wade.

Chelsey Youman, state director of the pro-life group Human Coalition Action, characterized the new Texas abortion law as one designed to withstand legal scrutiny. The law, which takes effect in September, will require physicians to check for a fetal heartbeat and prohibit abortions (except in cases of medical emergency) once one is detected, usually around six weeks’ gestation.

Texas is hardly the first state to pass such a measure.

Georgia, Ohio and South Carolina, among others, were early to limit abortion prior to fetal viability, passing heartbeat laws over the course of the last several years.

Predictably, they are all fielding challenges in federal court, an inevitability while Roe stands.

But Youman and others believe that the Texas law will be harder to fight in court because it employs a unique enforcement mechanism that relies not on state actors, but on private citizens.

Essentially that means individual citizens now have a legal cause of action to sue an abortion provider who violates the law. (Notably, perpetrators of a sexual assault that leads to pregnancy are prohibited from filing suit.)

There is no state enforcement; there is no government infringement of individual rights and therefore, none to protest.

This technique is used in laws related to Medicaid fraud, but it’s completely novel for abortion.

While abortion proponents will no doubt find ways challenge the law, its careful construction makes the path to a viable legal protest obscure and more complex.

And it sounds tailor-made for a state that prides itself on championing the role of the individual and limiting government authority.

Detractors have argued that relying on citizen enforcement pits Texans against one another, that it will encourage people to "turn each other in."

The criticism ignores that the law, Senate Bill 8, intentionally shields women seeking abortions (who are often themselves victims) from any legal repercussions, and only allows for civil action (in the form of statutory damages) to be brought against abortion providers or those who assist in the inducement of an abortion.

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It also misunderstands the spirit of the law, which is to increase public awareness of the frequency and horror of abortion and to bring Texans into the effort to end it.

"We as citizens have an interest in protecting the vulnerable among us," Youman said.

Having citizens engaged on this issue and willing to stand up for other Texans, including those who are pre-born, will also serve to shed light on the societal problems that often cause women to consider abortion their only option. It will force us to address those, as well, she added.

Still, relying on the citizenry to take legal action isn't as straightforward as it sounds. Most people will decline to get involved.

But Rep. Matt Krause, one of the bill's co-sponsors, expects the pro-life community to launch a communications campaign.

"There are so many crisis pregnancy centers and pro-life groups [that] will play a pivotal role in educating the public in enforcement of the law," said Krause, R-Fort Worth.

Much of the focus of the pro-life movement will be on the announcement Monday that the Supreme Court will take a Mississippi case and review the constitutionality of pre-viability abortion bans. But states like Texas take nothing for granted.

Because no matter what decision the court unveils next year, it is the work of pro-life advocates that will ultimately shift public opinion on abortion. And it's laws like SB 8 that will yield the public involvement required to end the practice and address the circumstances that lead to it in the first place.

(COMMENT, BELOW)

Cynthia M. Allen
Fort Worth Star-Telegram
(TNS)

Cynthia M. Allen is a columnist for the Fort Worth Star-Telegram.

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