Texas Heartbeat Act under attack

After several so-far unsuccessful attempts to block enforcement of the pro-life Texas Heartbeat Act, pro-abortion groups are back in court. A new set of lawsuits filed last week could provide another avenue for Texas abortionists to resume abortions of babies with detectable heartbeats.

The lawsuits, filed by Texas organizations that help women pay for abortions, target two pro-life women and their attorneys who have taken steps toward suing the abortion funds for violating the Heartbeat Act. In their complaints, the abortion funds ask the courts to declare the heartbeat law unconstitutional and prevent the defendants from enforcing the law.

But those legal moves are just the latest out of multiple lawsuits aimed at the law, which protects babies from abortion once they have a detectable heartbeat, at about six weeks of gestation. The Heartbeat Act’s unusual language blocks the government from enforcing the law and allows private citizens to sue people who provide or help with abortions. It has raised legal questions that courts have not completely resolved. Here’s an explainer of the heartbeat law’s current legal challenges:

How did last week’s new lawsuits come about?

Earlier this year, Heartbeat Act architects Jonathan Mitchell, the former solicitor general of Texas, and Texas Sen. Bryan Hughes, along with lawyers from the Thomas More Society and the America First Legal Foundation, filed petitions in an attempt to get sworn testimony from the directors of two pro-abortion organizations: the Lilith Fund and the Texas Equal Access (TEA) Fund. The petitions, filed on behalf of Texas women Ashley Maxwell and Sadie Weldon, aim to gather evidence that the fund directors helped women obtain abortions in violation of the Heartbeat Act.

Those violations would have occurred in October, during a two-day court injunction blocking enforcement of the law, when some abortion providers in the state temporarily resumed abortions of babies with detectable heartbeats even though they could still be held liable for those abortions later. In November, in lawsuits attempting to prevent enforcement, Lilith and TEA fund directors Kamyon Conner and Neesha Davé submitted sworn declarations admitting their organizations had each paid for “at least one abortion with the belief that the client’s pregnancy was after the period in which cardiac activity is usually detectable” during the two-day October injunction.

Since that would be considered aiding and abetting a prohibited abortion, Maxwell and Weldon are asking for permission from the courts to bring the directors in for questioning. That will give them a chance to find out if there’s enough evidence to sue the organizations under the Heartbeat Act.

Mitchell said the abortion funds got the cases transferred to a pro-abortion judge in Austin, but the pro-lifers have requested a return to the courts where they originally filed the petitions. The venue fight could take weeks to resolve.

Now, however, the two abortion funds are suing Maxwell, Weldon, and their lawyers. The funds have filed lawsuits seeking to prevent the Thomas More Society and the America First Legal Foundation from participating in Heartbeat Act enforcement efforts, and they have asked for the law to be declared unconstitutional. The groups filed the suits in Illinois and Washington, D.C., courts, which could allow them to avoid the conservative 5th U.S. Circuit Court of Appeals as the cases make their way through the system.

The funds also sued both Weldon and Maxwell in separate Texas courts, requesting injunctions against them, as well.

Steve Vladeck, a professor at the University of Texas School of Law, told The Washington Post that these lawsuits, if successful, would likely only prevent the named defendants from enforcing the Heartbeat Act. But he also said a victory for the abortion funds could make Texas abortion providers more confident of winning in future private enforcement lawsuits, which might embolden them to resume illegal abortions.

Last fall a Texas abortionist claimed he ended the life of an unborn baby with a detectable heartbeat. What happened to him?

Alan Braid of Alamo Women’s Reproductive Services claimed last year in a Washington Post op-ed that on Sept. 6 he performed an abortion on a woman who was “beyond the state’s new limit.” Texas Right to Life communications director Kim Schwartz said at the time that her group suspected Braid’s op-ed was “purely a legal and publicity ploy.” If his intent was to bait a lawsuit, it worked: Three men sued Braid under the Heartbeat Act. Two of the plaintiffs were pro-abortion former lawyers who apparently wanted to challenge the law, too.

Braid filed a countersuit in federal court that questioned the constitutionality of the Texas law. He argued the heartbeat law is vague and violates his patients’ right to a pre-viability abortion, among other things. In February, Braid asked the court to decide the case without a full trial. “Essentially … Dr. Braid is saying, ‘We have enough facts here, the facts aren’t in dispute, and I believe I should win this case,’” said Carolyn McDonnell, an attorney at Americans United for Life who tracks cases related to the Texas law. The court is now waiting on responses to Braid’s motion from the defendants.

Molly Duane, a senior staff attorney with the Center for Reproductive Rights, told The Washington Post that the case has a chance of eventually blocking the Texas Heartbeat Act, although it could take years to make its way through the court system. Meanwhile, pro-life sidewalk activists in San Antonio say Braid is still performing abortions at Alamo Women’s Reproductive Services.

Are any other lawsuits against the Heartbeat Act still pending?

The three other long-standing cases challenging the Texas Heartbeat Act have so far not brought about the results pro-abortion groups hoped for.

Last fall, the Supreme Court of Texas consolidated 14 lawsuits that pro-abortion groups (including Lilith and TEA Fund) had filed against Texas Right to Life. The lawsuits were an attempt to prevent the pro-life organization from using private lawsuits against them to enforce the Heartbeat Act. State Judge David Peeples, who heard arguments in the case, ruled in December that the law’s private enforcement mechanism violated the state constitution.

Peeples also ruled that Texas Right to Life could not file lawsuits to enforce the Heartbeat Act against the plaintiffs. Texas Right to Life appealed the decision, and the case is currently pending in a Texas appeals court. This case has a chance of stopping the Heartbeat Act: Steve Aden, general counsel with Americans United for Life, said he expects the eventual ruling at the appellate court will also raise questions about the constitutionality of the private enforcement mechanism that other Texas courts won’t be able to ignore.

The second case involves a U.S. Department of Justice lawsuit against Texas over the heartbeat law. That case in November made it to the U.S. Supreme Court, which dismissed it as “improvidently granted,” meaning the court thought it shouldn’t have agreed to hear the case in the first place. Pro-life attorneys at the time assumed that the 5th U.S. Circuit Court of Appeals would dismiss the case after that ruling. But the case remains alive. In February, the circuit court extended the deadline for briefs to April 1. McDonnell from Americans United for Life said those briefs should give a better idea of where the case is heading.

The third case, filed by Texas abortion providers, has been effectively dismissed after a journey to the U.S. Supreme Court and then back to Texas. The Texas Supreme Court earlier this month ruled that the state officials listed as remaining defendants in the case couldn’t enforce the Heartbeat Act, and thus the abortion providers were not allowed to sue them.