The Washington PostDemocracy Dies in Darkness

Abortion opponents watch for violations of Texas ban as providers weigh legal options

Nurse Catalina Leano checks an ultrasound machine at Houston Reproductive Services in Texas. (May-Ying Lam for The Washington Post)
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Antiabortion activists celebrated a victory years in the making on Thursday, while abortion providers and their advocates anticipated their next legal move after the Supreme Court allowed Texas to implement the strictest abortion ban in the nation.

The 5-to-4 decision late Wednesday said the law, based on a novel strategy put forward by a former law clerk to the late Justice Antonin Scalia, could remain in effect ahead of lower court battles over whether it is constitutional.

The statute prohibits most abortions in Texas and empowers private citizens — rather than the government — to enforce the ban on abortions as early as six weeks into pregnancy. Its enactment drew outrage from President Biden and other top Democrats, and it quickly embroiled all three branches of government in a constitutional battle many thought was settled nearly 50 years ago.

Abortion providers and opponents said it was too early to predict a test case, in which a person sued under the law could contest its legality, because abortion providers appeared to be complying with the law and were not performing the newly banned procedures.

But antiabortion groups were monitoring anonymous tips about potential violations, which could include not only health-care workers who assist in abortions but also people who help fund, transport or counsel patients. Providers were huddling with lawyers to prepare to challenge the lawsuits they think will eventually come.

Supreme Court order on Texas abortion ban shows threat to Roe v. Wade

President Biden on Sept. 2 said he is launching a "whole-of-government effort," including from the White House counsel, to combat a new Texas abortion law. (Video: Reuters)

In Washington, Biden denounced the law’s “devastating impacts,” while House Speaker Nancy Pelosi (D-Calif.) said it creates a “vigilante bounty system” and called for a vote on legislation that would enshrine a woman’s right to an abortion in federal law.

In a statement, Pelosi said the Texas law “unleashes one of the most disturbing, unprecedented and far-reaching assaults on health care providers — and on anyone who helps a woman, in any way, access an abortion.”

The issue appeared likely to reshape the political landscape, including whether Biden should make changes in the structure of the court.

Reporting relatives?

Even before the late-night ruling from the high court, abortion providers in Texas were turning away women seeking their services who were past the legal limit of about six weeks — once a doctor can detect cardiac activity, with no exceptions for pregnancies resulting from rape or incest.

Abortion clinics said they were fielding more calls than usual from patients, but organizations that provide abortion funding to poor women in Texas said requests had fallen sharply.

Joe Nelson, a doctor at the Whole Woman’s Health network, said he saw a patient Wednesday who is more than six weeks pregnant and had taken medication to induce an abortion before the ban took effect. The medication failed, a rare outcome for that procedure. By the time he saw her, it was illegal for the clinic to terminate her pregnancy.

“Not only does she have to continue the pregnancy — but it’s a pregnancy that’s higher risk because of the medication she took,” Nelson said. He sat with the woman as she cried.

Analysis: What to know about the new Texas law

Texas Right to Life, which helped pass the law, has set up an online portal to collect anonymous information about possible ban violations and is encouraging individuals to pursue lawsuits. Legislative director John Seago said the group has received some tips but none that lead them to think clinics are performing illegal abortions. “As far as we can tell, everyone is complying with the law on the industry side, so there is no aiding and abetting happening,” he said.

In Waco, Tex., Bob Lehman stood outside a Planned Parenthood clinic and said empowering regular people to report illegal abortions “puts teeth in the law.”

Lehman, a board member of Pro-Life Waco, predicted that fathers and other relatives will report abortions obtained by female relatives, unhappy that their daughters or sisters chose not to continue their pregnancies.

Planned Parenthood affiliates sometimes attend his organization’s events, he said — and he can imagine Pro-Life Waco sending their own plants into the clinic. “If you want to strike at the head of the snake, you go to the abortion facility,” he said.

Several people and advocacy organizations that help women access abortions won restraining orders in local courts in advance of the ban taking effect, temporarily barring Texas Right to Life and unnamed people working with it from using the law to sue them. They argued that the law creates liability for such people as lawyers advising women seeking abortions, including potential survivors of rape, or those who provide transportation to women seeking abortions.

Jenny Ecklund, a lawyer representing those who sued, said the restraining orders provide immediate protection and — if they are made more permanent — could offer a more durable shield as courts consider the overall constitutionality of the law.

But the orders are also limited. They protect only the people and organizations that get them, and only from the Texas Right to Life group and those working with it.

“At this point, it’s all hands on deck, and every possible avenue is to be pursued,” she said. “Ultimately, a final determination on the constitutionality of the law would benefit everyone.”

After 5-4 Texas abortion ruling, a look at what Kavanaugh told Sen. Collins

Novel legal strategy

Federal judges have blocked six-week abortion bans in other states, citing the landmark Roe v. Wade decision that guarantees a woman’s right to terminate a pregnancy before viability, typically between 22 and 24 weeks.

But the structure of the Texas law sets it apart and makes it more resistant to a preemptive strike.

Private citizens are empowered to police the ban against anyone who helps a woman get an abortion. An ex-boyfriend, a neighbor or a complete stranger can file a lawsuit in any state court in Texas with the potential for a $10,000 payoff — and no financial penalty if the lawsuit is not successful.

A Supreme Court review of a Mississippi abortion law could pave the way for many other state laws that restrict or ban the procedure. (Video: Joshua Carroll/The Washington Post, Photo: Melina Mara/The Washington Post)

Legal experts drew parallels between the Texas law and the federal False Claims Act, which allows private “whistleblowers” who suspect fraud against the U.S. government to go to court on the government’s behalf. The cases can result in million-dollar paybacks to the government, and whistleblowers can receive a piece of the recovered funds.

But those lawsuits, known as qui tam actions, don’t substitute private citizens for the government.

Instead, U.S. officials are still ultimately in charge of enforcing the laws. They assume primary responsibility for the prosecution and can dismiss or settle the matter over the objection of the private individual.

Because the Texas law specifically bars state officials, including the attorney general, from enforcing the ban, there isn’t anyone for abortion providers or abettorsto sue until they are the target of a lawsuit and can assert their constitutional rights.

The Texas law also allows anyone, even people who have no connection to the abortion, to take an abortion provider or clinic worker to state court. In federal court, individuals who aren’t directly injured or harmed do not have legal grounds to sue.

Dallas County Judge Clay Jenkins (D), who opposes the law, said he expects that antiabortion groups and angry exes will soon file suits against those who help women get abortions — seeking to impose “financial ruin” on them.

Texas abortion ban immediately reshapes political landscape

Qui tam lawsuits, Jenkins said, are meant to ferret out wrongdoing. By contrast, he added, the abortion law allows any citizen to become a potential enforcer of a policy that will probably face serious constitutional challenges.

Jenkins said that principle could be applied by lawmakers in other states who want to take aim at aspects of the Constitution they don’t like, such as freedom of the press or the right to bear arms.

Chief Justice John G. Roberts Jr., who broke with other conservatives on the Supreme Court to argue for blocking the ban while the legal battle goes forward, noted the novel approach of farming out enforcement to private citizens and the potential consequences.

He said he would stop the law before it went into effect “so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.”

The ban was shaped by the writings of Austin-based attorney Jonathan F. Mitchell, who guided state lawmakers based on an approach he first outlined in a 2018 Virginia Law Review article.

Mitchell, who in addition to clerking for Scalia spent five years as Texas solicitor general, declined an interview on Thursday.

But Mitchell, who has appeared four times before the Supreme Court, devised the approach outlined in the law review article after defending Texas laws in court.

Mitchell, a graduate of the University of Chicago Law School and member of the conservative Federalist Society, was a visiting professor at Stanford Law School and at the Hoover Institution when he suggested strategies for making legislation more immune to court challenges.

His article laid out steps the legislature can take if it is about to enact a law that is certain to be challenged. He mentioned legislation involving a range of issues, including campaign finance, gun control, “sanctuary cities” — and abortion.

The legislature can “induce compliance with its statutes by providing for private enforcement through civil lawsuits,” Mitchell wrote. “These mechanisms are especially powerful because they enable private litigants to enforce a statute even after a federal district court has enjoined the executive from enforcing it.”

The bill’s lead state Senate sponsor, Bryan Hughes, said he took a page from Mitchell’s playbook when drafting the bill.

“I get to be the author of the bill, my name is on it, but we relied on his work,” Hughes said. “We’re thankful for all the help.”

Kitchener reported from Waco, Tex. Marimow and Zapotosky reported from Washington. Robert Barnes and Alice Crites in Washington contributed to this report.