Lawsuit Challenges Texas’ Newest Abortion Ban

Abortion rights activists and providers filed a federal lawsuit on Tuesday, challenging Texas Senate Bill 8. S.B. 8 bans abortion in Texas after approximately six weeks of pregnancy and allows private citizens to sue any abortion provider or individual who violates the law.

Specifically, S.B. 8 allows any individual other than a government official to bring a civil lawsuit against anyone who provides an abortion after a doctor can detect a fetal heartbeat (about six weeks of pregnancy) or anyone who “aids and abets” or intends to aid and abet such an abortion. The law provides an exception for medical emergencies, but not for rape or incest.

Notably, the Complaint states, even individuals not personally connected to the particular abortion may bring suit. The law provides for “injunctive relief sufficient to prevent” future violations, statutory damages of at least $10,000 per abortion (without any showing of harm), and associated costs and attorneys’ fees. S.B. 8 is set to take effect on September 1, 2021.

The Complaint argues that among the concerning effects of S.B. 8, even those providers and individuals who ultimately prevail in their defense must “spend massive amounts of time and money to defend themselves in lawsuits across the state in which the deck is heavily stacked against them.” The Complaint goes on to state that these lawsuits alone will be enough to accomplish “S.B. 8’s goal of harassment.”

Abortion rights activists have had previous success challenging six-week abortion bans in other states, but S.B. 8 is uniquely different. Usually, abortion bans are enforced by government officials, but S.B. 8 was written to specifically prevent government officials from enforcing it. Instead, it put enforcement power in the hands of private citizens. The Texas suit attempts to account for the difference by suing defendants who may be involved in the enforcement process, such as judges and leaders of the Texas Medical Board and the Texas Board of Nursing, among others. 

1937’s Roe v. Wade and 2016’s Whole Woman’s Health v. Hellerstedt were both Texas lawsuits that made their way to the United States Supreme Court. Roe v. Wade famously held that a person may choose to have an abortion until a fetus becomes viable outside of the womb. Whole Woman’s Health, a much more recent decision, found that certain requirements imposed on abortion providers were unduly burdensome and there was no persuasive evidence those requirements would protect women’s health more effectively than existing laws. 

Additional Reading

Abortion providers sue judicial officials over citizen-enforced Texas abortion law, ABA Journal (July 15, 2021)

Lawsuit Takes Aim at Citizen-Enforced Texas Abortion Law, The New York Times (July 13, 2021)

Twenty abortion providers sue Texas officials over law that bans abortions as early as six weeks, The Texas Tribune (July 13, 2021)

Whole Woman’s Health, et al.’s Complaint (July 13, 2021)

Image Credit: Martina Birnbaum /