Nevertheless, the logic behind this argument is flawed. The tactic has been successful thus far because the federal Fifth Circuit Court of Appeals accepted Texas’s no-state-actor argument and the Supreme Court acquiesced (for now). Without a government defendant to sue, abortion providers lost the ability to challenge the law prior to themselves being sued. The law specifically prohibits any Texas state or local official from enforcing or threatening to enforce the abortion restrictions. In a truly Machiavellian move aimed to chill practitioners into compliance without permitting judicial review, Texas completely privatized enforcement of the Heartbeat Act. The Texas Heartbeat Act departs from typical legislation in another important respect. That means that even if it is determined that an abortion was not performed, a defendant did not aid and abet an abortion, or an abortion was permitted under the medical emergency exception-because there was a “danger of death” or “serious risk of substantial impairment of a major bodily function”-defendants bear the financial burden of their exoneration. Although defendants must pay the legal costs and fees of successful plaintiffs, wrongfully sued providers and friends and family members of pregnant women are specifically denied the right to recover their costs. The Texas Heartbeat Act dispenses with these usual safeguards.

These limitations on private enforcement of public laws are designed to deter unduly burdensome and harassing litigation. Other “ private attorneys general” and private enforcement laws require plaintiffs to be personally “ aggrieved” by the challenged action.įinally, federal and state laws discourage frivolous lawsuits by requiring litigants who bring clearly unmeritorious claims to pay the opposing party’s attorneys’ fees. Unlike the Texas law, however, environmental plaintiffs do not receive any financial reward for their efforts, unless they have been personally harmed by the pollution.įalse claims acts, which authorize private lawsuits against those who have defrauded the government, include monetary incentives for plaintiffs, but the government receives most of the recovered funds. Like the Texas Heartbeat Act, these statutes award attorneys’ fees to successful litigants. Numerous environmental laws, for example, permit “citizen suits” for court injunctions to stop and remedy pollution. Many federal and state laws supplement government enforcement by authorizing private lawsuits against violators. There is nothing unusual in permitting a private right to sue as a tool in enforcing law. The law empowers “any person” to sue everyone involved in performing an abortion after the detection of fetal “cardiac activity.” The Texas Heartbeat Act is an extraordinary departure from legal norms. The law stipulates that it “may not be construed to authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed or induced or attempted to be performed or induced.” Anyone found liable under the law must pay a minimum of $10,000 to the plaintiff plus the plaintiff’s legal fees, which could be hundreds of thousands of dollars. Rather than imposing government sanctions on abortion providers, the law empowers “ any person,” other than a government official, to sue everyone involved in performing or “aiding and abetting” an abortion in Texas if that abortion is performed after the detection of fetal “ cardiac activity.” That would be before most women and girls would know they are pregnant. These cases will permit a direct constitutional challenge to the controversial law.

He was promptly sued in two separate lawsuits. A little over two weeks after Texas passed its fetal heartbeat law, a San Antonio doctor revealed in a Washington Post opinion column that he performed an abortion in defiance of the new law.

Texas heartbeat bill