The U.S. Supreme Court has refused, for now, to intervene in a Texas law that would ban nearly all abortions in the state—and allows anyone in the U.S. to enforce it.
In July, the Texas state legislature passed the Texas Heartbeat Act, a law that bans abortion after the point where a heartbeat can be detected, which can be as early as six to seven weeks after conception.
Physicians in Texas are required by the law to test for a heartbeat, and are forbidden from knowingly performing or inducing an abortion on a pregnant woman if they detect a fetal heartbeat.
Fetal heartbeat laws aren’t new. But this is the first that has not been blocked by the courts. Similar laws have passed in four other states (Arkansas, Iowa, Kentucky, and North Dakota), but all were blocked before going into effect. Fetal heartbeat laws have also failed to pass in a dozen states and have been proposed or re-proposed in 13 states. A federal Heartbeat Protection Act was even proposed in Congress in 2017, though it never made it out of committee.
That it was not blocked would be noteworthy enough. But the law contains a unique enforcement feature: it prohibits enforcement of the law by government officials, and relies on private citizens to enforce it through civil litigation.
The way the law works is that any person—even someone who does not live in Texas—can bring a civil lawsuit against:
- any person who performs or induces an abortion in violation of this law;
- any person who knowingly engages in conduct that aids or abets the performance or inducement of an abortion;
- any person who pays for or provides reimbursement for the costs of an abortion through insurance or otherwise.
The lawsuit can be brought regardless of whether the person who aided in the abortion was aware of violating this law. The court is directed to force the defendant to pay costs and attorney’s fees, pay statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced, and award injunctive relief sufficient to prevent the defendant from violating this law or engaging in acts that aid or abet violations of this law.
“The Texas Heartbeat Act is novel in approach, allowing for citizens to hold abortionists accountable through private lawsuits,” said Rebecca Parma, a senior legislative associate with Texas Right to Life.