The latest attempt to undermine abortion rights in America comes from the state of Texas, where a severely restrictive abortion law, limiting access to the abortion services as early as six weeks, went into effect Wednesday at the stroke of midnight. The law, like many of the reproductive laws coming out of GOP state legislatures, outlaws access to an abortion when anti-abortion activists say a fetal heartbeat can be detected (a claim that is contested), a point which is often early enough in a pregnancy that the woman isn’t yet aware she is pregnant. Abortion providers say the new timeframe on what constitutes a legal abortion would exclude the nearly all abortions in the state, as 85 to 90 precent of women have the procedure after the six-week mark.
Unlike the many speculative, often outrageous abortion laws passed in Republican states, the courts did not intervene this time around. Normally, after such a law is signed, the federal courts step in and halt its implementation because the bills amount to egregious overreach of the decades of settled legal precedents stemming from Roe v. Wade. This time around, however, the Supreme Court refused to intervene in a case brought by Texas abortion clinics against the law that was officially signed by the governor in May. What makes the Texas law different than its predecessors is that it effectively deputizes private citizens to enforce it.
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“In the novel legal strategy, the state Legislature designed the law to prevent government officials from directly enforcing it,” CNN reports. “The move was meant to make it much more difficult to bring a pre-enforcement challenge because there are not the usual government officials to hold accountable in court. Instead, the law allows private citizens—anywhere in the country—to bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the ban.” The rationale behind the law is clearly to flood abortion providers with legal challenges brought by individuals such that it would make it prohibitively costly to defend against the frivolous suits, while opening up the clinics to damages.
The strategic legal reasoning behind structuring the law this way was expressed by Texas’ Republican Attorney General Ken Paxton, who, the Washington Post reports, “said the Supreme Court does not have jurisdiction to act against the law at this point, and that any legal challenges would have to wait until someone actually brought a civil action against an abortion provider or someone who aids the woman.” So maybe no one will ever sue? That seems unlikely. But what has happened is exactly what Republican legislators in Texas surely wanted: an effective game of chicken where abortion providers will have to continue on providing services, contravening the law, and risk getting sued in order to challenge the law’s legitimacy in federal court.