Heartbeat law battle highlights pro-life tactical divide

After Texas enacted its now-famous heartbeat law earlier this year, the bill’s pro-life architect, Jonathan Mitchell, began making even bigger plans. Mitchell eyed a handful of other states where he hoped legislators would introduce similar bills banning abortions after about six weeks’ gestation. Having multiple states take similar pro-life action could send a message to the Supreme Court, advocates of the bills hope, making it easier for the court to overturn Roe v. Wade, the 1973 case legalizing abortion.

Not all pro-lifers saw it that way.

“I think it could have actually the opposite effect,” said attorney Paul Linton, special counsel for the pro-life group Texas Alliance for Life. “I think it could antagonize members of the court, including potentially justices whose votes we would need to overrule Roe.”

The heartbeat law takes an unusual approach to enforcement, using lawsuits from private citizens, not public officials, to ensure abortion facilities follow the rules. But Linton believes that approach showed that Texas legislators knew they couldn’t constitutionally restrict abortions before the point of viability. Anything that is unconstitutional for a government to do directly, he pointed out, is also unconstitutional for it to do indirectly. So, when Linton heard in September that Mitchell was pushing for similar legislation in other states, he told his contacts in some of those states that he wouldn’t advise pursuing it.

Mitchell declined to speak to me on the record.

The Texas heartbeat law and its current legal battles—the U.S. Supreme Court last week agreed to hear two cases challenging the law—highlight a rift in strategy within the pro-life movement. Pro-lifers generally agree they’d like to see the Supreme Court justices overturn Roe, but they sometimes differ over the best tactic to achieve that outcome. Some worry the Texas law, despite short-term success, will play into the hands of pro-abortion groups and be speedily struck down by courts, leading to a long-term loss for the unborn.

Linton isn’t alone in his concerns. The executive director at his organization, Joe Pojman, celebrates the unborn lives the legislation appears to be saving yet worries it won’t withstand court challenges. He acknowledges that citizen lawsuits have been present in American law since at least the Civil War, but said Texas’ use of this mechanism could give more liberal states bad ideas, perhaps leading to similar laws that could, for example, restrict pro-lifers from praying outside of abortion facilities. Sam Lee, a pro-life activist in Missouri, agrees and thinks the law’s $10,000 award for successful litigants gives the perception that pro-lifers are primarily concerned about getting money. “If we’re not perceived as caring people but as vindictive or mercenary… we may win in the courts, but we’re not going to win the hearts and minds,” he added.

Linton worries the law could create a negative perception, stirring up anger among pro-abortion groups. He’s concerned the law might it make it appear that Texas is dishonoring Supreme Court precedent, potentially provoking a negative response from the Supreme Court just weeks ahead of oral arguments in another abortion case, Dobbs v. Jackson Women’s Health, scheduled for Dec. 1.

But John Seago, the legislative director of Texas Right to Life, one of the primary groups supporting the heartbeat law, doesn’t think the Supreme Court is that unstable. If it were, he said, any other state law that protects babies from abortion before viability would also antagonize the court, including the 15-week abortion ban behind the Dobbs case. Seago said the Texas law has illustrated to the court what a post-Roe scenario could look like: “Women want to access abortion, they go to another state. … We see that our hospitals are not filling up with women who are trying to do self-abortions and being harmed. I mean, all of the doomsday scenarios that the left puts out there about what happens if Roe is overturned, they’re being disproven in Texas for the last month and a half.”

(In a dissent to Friday’s Supreme Court order, Justice Sonia Sotomayor seemed unimpressed, writing that Texas had “thoroughly chilled” the practice of abortions, to “catastrophic” effect.)

Seago said the law doesn’t use the private enforcement mechanism to ignore the constitutional considerations of Roe but rather to bring the debate about Roe’s constitutional validity to a new venue. “The entire pro-life movement believes that … [Roe] is erroneous precedent, and we have to find ways to display that in the court,” Seago said. Since federal courts have historically ignored states’ interests in protecting the unborn, he said, this law tries something new by bringing the issue to state courts.

Earlier this month, a federal judge blocked the Texas law for two days in response to a lawsuit from the U.S. Department of Justice. Some abortion providers resumed the procedures on babies with detectable heartbeats during that small window of time, even though they could still later be held liable under the law. But thus far, no one has sued the abortion providers.

In an email exchange the week after the two-day injunction, Texas Right to Life communications director Kimberlyn Schwartz confirmed to me the organization had not filed a lawsuit against Whole Woman’s Health, one of the groups that had briefly resumed abortions. But she added: “I can’t reveal our legal strategy.” In a phone call, Seago told me it would be “legally prudent” to wait and see what comes of the lawsuit that led to the injunction before filing suit against groups like Whole Woman’s Health. (The law gives plaintiffs a four-year window to sue.)

San Antonio abortionist Dr. Alan Braid claimed in a Sept. 18 Washington Post op-ed that he violated the Texas heartbeat law and performed an abortion on a woman after “the state’s new limit.” But when two lawsuits from out-of-state plaintiffs arose against Dr. Braid, Texas Right to Life dismissed them in a Sept. 20 statement, saying, “Neither of these lawsuits are valid attempts to save innocent human lives. Both cases are self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes.” These two plaintiffs appear to have no connection with the pro-life movement, and one called himself a “pro-choice plaintiff.” A third lawsuit came from a man in Bellaire, Texas, who claims to be pro-life, according to Texas Right to Life. Braid countersued in these cases earlier this month, calling the heartbeat law unconstitutional under Roe v. Wade.

But Linton said any provider that wanted to keep performing abortions could simply file a counter lawsuit in federal court against anyone who sues them. The civil rights act allows any person deprived of rights secured for them under the Constitution to sue—and that includes abortion, as long as Roe stands.

Meanwhile, he maintains that it’s hard to tell how many lives the law has actually saved. “We don’t know how many women in Texas are simply delaying their abortion for several weeks or even a month or two to see if this law is enjoined and they can go and get an abortion,” he said. For now, some women who are past the six-week limit can travel out of the state to get a legal abortion, and the data for that won’t be available until 2022. If any Texas women went to Mexico for abortions, those numbers may never surface.

The Texas law has been in place for more than a month and a half already, but the situation in the state could change very soon. The Supreme Court on Friday agreed to expedite its review of two lawsuits challenging the law, scheduling oral arguments for Nov. 1.

The court left the law in place in the meantime.