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Legal Experts Have Been Divided On The Strategy, And Abortion Rights Advocates Have Said They Plan To Fight Regardless

Instead of having the government enforce the law, the bill turns the reins over to private citizens — who are newly empowered to sue abortion providers or anyone who helps someone get an abortion after a fetal “heartbeat” has been detected. The person would not have to be connected to someone who had an abortion or to a provider to sue.

Proponents of the new law hope to get around the legal challenges that have tied up abortion restrictions in the courts. While abortion providers typically sue the state to stop a restrictive abortion law from taking effect, there’s no state official enforcing Senate Bill 8 — so there’s no one to sue, the bill’s proponents say.

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“It’s a very unique law and it’s a very clever law,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston. “Planned Parenthood can’t go to court and sue Attorney General [Ken] Paxton like they usually would because he has no role in enforcing the statute. They have to basically sit and wait to be sued.”

Elisabeth Smith, chief counsel for state policy and advocacy at the Center for Reproductive Rights, which has represented abortion providers who have sued Texas officials, said it and other abortion rights organizations are “not going to let this six-week ban go unchallenged.”

Drucilla Tigner, policy and advocacy strategist of the American Civil Liberties Union of Texas, said the “governor’s swipe of a pen can’t change the Constitution.”

While the law amounts to the most extreme abortion ban in the country, “abortion is both legal in Texas and supported by the majority of Texans,” Tigner said.

Abortion rights advocates and lawyers say the new law would allow for a cascade of lawsuits against abortion providers that would sap their time and money even if they ultimately won in court.

Family members, abortion funds, rape crisis counselors and other medical professionals could be open to lawsuits, under the broad language in the bill, according to legal experts and physicians who opposed the measure. People who sued would be awarded at least $10,000, as well as costs for attorney’s fees, if they won.

“Every citizen is now a private attorney general,” Blackman said. “You can have random people who are against abortion start suing tomorrow.”

John Seago, with Texas Right to Life, an anti-abortion bans off our bodies organization that supported the bill, said he doubted there would be an “overwhelming number of cases on day one.”

Lawsuits might be filed by anti-abortion activists who learned through talking to the woman that she got an abortion after six weeks.

“There’s going to be a lot of different (fact) patterns that could lead to the case,” he said. But the bill isn’t “throwing out the typical way that the judicial system works — there’s still going to be a judge, there’s still going to be depositions, there’s going to be a high bar” before fees are awarded.

The ultimate goal, he said, is to incentivize abortion providers to comply with the law instead of fighting it in court.

They can “easily avoid all of that,” Seago said. “Have a public statement. Put it on their website that they’re not scheduling appointments after six weeks.”

The bill does not allow rapists to sue, but abortion rights advocates say the wording offers flimsy protection as most rapes and sexual assaults aren’t reported and don’t result in a conviction.

Most abortions in Texas were prohibited after about 20 weeks. Pill-induced abortions were barred at 10 weeks. An abortion provider must perform a sonogram on the woman 24 hours before the abortion and give them information about medical risks, abortion alternatives and assistance available to those who follow through with their pregnancy.

More than 56,600 abortions were performed on Texas residents in 2019, according to state statistics, most of them in the first trimester.

Proponents of the law celebrated its signing.

“The Legislature and Governor prioritized this historic legislation, and with his signature, approximately 50,000 precious human lives will be saved in Texas next year alone!” said Chelsey Youman, with Human Coalition Action, an anti-abortion organization.

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