As of now, two challenges to the Texas Heartbeat Act have reached the United States Supreme Court. Despite receiving hearings on November 1, the Supreme Court hasn’t ruled on these cases yet.
However, as Isaiah Mitchell of The Texan noted, a group of lawsuits has made considerable movement after they received a hearing in Austin on November 10. These lawsuits appear to have better chances of challenging the state law.
Judge David Peeples heard arguments by several abortion clinics, counselors, and supporters against anti-abortion organization Texas Right to Life (TRTL) on November 10. Because the fourteen lawsuits share the same basic claims and facts, the Supreme Court of Texas allowed the cases to be combined into one via the Texas Multi-District Litigation (MDL) Panel. The panel selected Peeples to oversee these lawsuits.
The legal dispute deals with the Heartbeat Act passed during the 87th Texas legislature as Senate Bill 8. The bill outlawed “abortions after detection of an unborn child’s heartbeat,” which is typically discernible at approximately six weeks into the pregnancy. Anyone who performs an abortion or “aids and abets” in the abortion could be subject to a lawsuit.
The law prohibits the government from enforcement but instead establishes a private cause of action that allows “any person” to sue violators for damages of at least $10,000. A couple of exceptions noted in the law is that the pregnant woman who sought the abortion cannot be sued, and any man that commits an act of rape or incest resulting in the pregnancy cannot file suit.
The bulk of the debate that took place on November 10 concerned whether the judge’s action could settle the case. Although their case is confined to a single group, the abortion providers and pro-abortion advocates have framed it as the principal challenge to the Heartbeat Act’s constitutionality in state court.
The plaintiffs specified on November 10 that a declaratory judgment from Peeples could potentially sway other judges to enjoin the law thoroughly.
“There is clearly a controversy between the parties before you about whether SB 8 is constitutional. Your declaration can resolve that controversy,” stated legal counsel for one of the plaintiffs.”[State court precedent] makes clear that plaintiffs who are seeking pre-enforcement review of a challenged law can do so where they have intent to engage in a course of conduct that’s constitutionally protected but proscribed by the challenged law.”
TRTL responded by arguing that Peeples could not settle the conflict or redress the damages that the plaintiffs claim the law has brought upon them. Even if Peeples issued an order that would prevent TRTL from taking legal action against the plaintiffs, it would not prohibit other individuals or institutions from filing a lawsuit.
“The injury that they’re complaining of has nothing to do with Texas Right to Life… A declaratory judgment can only run against the parties to this case,” one of the TRTL attorneys stated. “An order of this court will not redress the injury they say they are suffering.”
TRTL argued that the only possible alternative would be an advisory opinion that has virtually no impact. In Texas, advisory opinions coming from a court are generally considered unconstitutional in Texas and federal law because they do not resolve an actual controversy, which the Third Amendment of the Constitution requires.
SB 8’s proponents, which include TRTL in state court to the State of Texas in federal court, have maintained that state court is the appropriate place to challenge the law’s constitutionality. However, TRTL said on November 10 that the plaintiffs were not in the “proper posture” to challenge SB 8’s validity since they were suing rather than defending themselves in an SB 8 lawsuit.
The fate of SB 8 is still up in the air. Still, the controversy surrounding it represents a growing tension in Republican states nationwide, which have become more responsive to grassroots activists who have lost confidence in the federal government to act on their demands.
