Dallas — There is only one remaining abortion clinic in the entire state of Mississippi. The U.S. Supreme Court said Monday that it will hear arguments this fall over that state's 2018 law that would limit abortions after 15 weeks of pregnancy. For both sides of the abortion issue in Texas and around the country, the case in Mississippi should be instructive, as it will test how far a court remade under former President Donald Trump is willing to go to restrict the right to an abortion.

What You Need To Know

  • Texas’ “heartbeat bill” is unique in that it allows any person in the country to sue anyone involved in a Texas abortion.

  • Legal experts are also debating whether or not the law violates a specific provision in the Texas Constitution designed to limit frivolous lawsuits.

  • Attorneys around the country believe the law doesn’t meet the minimum requirements for a civil suit.

  • Supporters of the law note that it doesn't suspend normal legal standards for denying frivolous suits and, since everyone is injured by abortion, that cases can be tried in a civil court.

A recently passed law in Texas is even more restrictive than the Magnolia State’s. SB 8 bans abortions after six weeks — before many mothers even know they are pregnant. The law also does not make an exception for victims of rape or incest. Mississippi and Texas are now the clear front lines in a battle to overturn Roe vs. Wade. Like Mississippi’s law, the fate of SB 8, which Gov. Greg Abbott signed into law last week, will likely be decided in the courts.

Texas’s broadly worded “heartbeat law” is unique in that it allows any person in the country to sue anyone involved in a Texas abortion, including a family member who “aides and abets” a woman seeking to terminate her pregnancy, a friend who drives her to the clinic, and/or possibly even an attorney who offers legal advice to anyone in the chain. 

Normally in this type of litigation, groups like Planned Parenthood or ACLU sue a government official trying to enforce the law. In this case, there’s a chance that any organization wanting to challenge the law may have to wait until the first lawsuits start to roll into the system, which would allow the law to go into effect before the courts can stop it, as was the case in Mississippi.

Many attorneys around the country are already decrying the law as unconstitutional and don’t believe it will withstand the coming onslaught of lawsuits. They say, for one, that abortion is still legal in the country, and women seeking to terminate a pregnancy are still protected by the ruling in Roe vs. Wade. Legal experts are also debating whether or not the law violates a specific provision in the Texas Constitution designed to limit frivolous lawsuits. The law’s “cause of action” is also legally questionable, since enforcement is shifted to private civil action. Attorneys around the country say they believe the law doesn’t meet the minimum requirements for a civil suit.

Well-known Dallas-based women’s rights attorney Michelle Simpson Tuegel, best known for her work on behalf of USA Gymnastics plaintiffs in their suit against disgraced team doctor Larry Nassar, is among those who believe the law will be struck down by the courts.

“The Texas Constitution has minimum requirements to maintain a civil legal action,” she said. “And it allows access to our courts for a person who has had an injury done to them. I've seen a quote that I think is really interesting from [Texas Supreme Court] Justice Willett. He said that, in Texas, the standing doctrine requires a concrete injury to a plaintiff. They have to be personally injured and plead those facts. I think that at a basic level of Texas law, this statute does not prescribe or require that. And I think that's where they're going to run into some real issues.

"The same legislators who support the right to limit lawsuits have just expanded the right to sue to an extent that goes well beyond what our law allows,” she said. The law, she continued, “lacks the usual protections to prevent abusive lawsuits and ensure a fair and efficient process."  

Rebecca Parma, senior legislative associate for Texas Right to Life, the largest and oldest pro-life organization in Texas, is among those who believe the authors of SB 8 crafted a bill — and now law — that will withstand the coming legal challenges.

“There's a pretty typical song and dance that happens when a pro-life bill becomes law,” she said. "The abortion industry sues, the law doesn't go into effect while it works its way through the court system, or maybe ever depending on the ruling,” she said. “But the difference with this law is that because of a different enforcement mechanism, it removes that preemptive ability of the abortion industry to sue the state and delay the law being enforced. And so, at this point, I wouldn't be surprised if they attempt to sue, but there’s really no one for them to sue.”

The law does not conflict with the state constitution, she said, because it doesn’t suspend any of the traditional judicial or evidentiary standards that a plaintiff would have to fulfill in any lawsuit.

“If someone wants to bring a lawsuit and thinks that a violation of this law occurred, they're still going to have to bring appropriate evidence, meet those legal standards,” she said. “The judge will still have to decide. People are still going to have to meet a very high legal standard. And I don't think that will just result in lawsuits that are going nowhere.”

The law would still qualify for civil court because everyone, which includes an individual, is negatively affected by the loss of an unborn child, Parma added.

“In other parts of health-care law, we see this — where any member of the public can bring a lawsuit, like in Medicaid fraud, because as a society we're being injured,” she said. “And so, that person is being injured by the fraud, or by the violation. That is what is applying here. Killing an innocent human being is hurting all of us as society and violating the law. And so, that's why anyone can bring this lawsuit.”

There are other features in the law that critics said make it uniquely one-sided — and ultimately unconstitutional. For example, this law only allows a plaintiff, not a defendant, to recover attorney’s fees if they win the case. There’s also an unusual provision that allows the plaintiff to decide where they're going to sue, which is the opposite of standard legal practice. Normally, the case would be tried in the city where the offense occurred.

“All of that is to try, quite frankly, to use the legal process and weaponize it in a way that it's inconsistent with how a lot of tort reformers have argued the system should be used — unless it's in the interest of the issues that they care about,” Simpson Tuegel said. "So [in this law], you can use the threat of litigation to drag a defendant, who you sue, to some place where they've never done business, they've never been and as far from where their life is.

“The problem with this statute, beyond the issues that it has in how it impacts women and sexual assault and rape survivors, is it's being used in a way that it's not consistent with the Texas Constitution and with very basic civil procedure requirements, which Republicans have, for many decades now in Texas, fought for,” she continued.

Simpson Tuegel anticipates those who oppose this law will likely try and challenge it by having a person or entity from outside the state provide aid to a woman seeking an abortion in Texas in a way that violates this new law, which could get the out-of-state defendant sued and create what is known as "diversity jurisdiction." That tactic could then allow the defendant to remove the case to federal court, as opposed to litigating this in a Texas state court.

Another potential consequence of this law, she added, is that medical providers may no longer feel comfortable telling women where to obtain a safe abortion because of the potential legal liability.

“It's got some far-reaching implications of how it's going to trickle down and impact women's access to care,” she said.

Parma emphasized this law is not about punishing women, but rather holding people who perform the procedure legally accountable.

“The law is really clear about not allowing these lawsuits to be brought against the woman,” she said. “And that's something that's really important to Texas Right to Life — to make sure these laws don't criminalize the woman. They don't punish the woman. The punishment falls on the person committing the abortion.”