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Lawsuit targets Texas abortion law deputizing citizens to enforce six-week ban

Texas Gov. Greg Abbott (R) signed legislation in May banning abortions in the state as early as six weeks into a pregnancy. (Eric Gay/AP)

Abortion rights advocates and providers filed a federal lawsuit in Texas on Tuesday seeking to block a new state law empowering individuals to sue anyone who helps a woman get an abortion, including those who provide financial assistance or drive a patient to a clinic.

A dozen states have passed laws banning abortion after about six weeks of pregnancy. But the Texas law, set to take effect in September, goes further by incentivizing private citizens to help enforce the ban — awarding them at least $10,000 if their court challenges are successful. Even religious leaders who counsel a pregnant woman considering an abortion could be liable, according to the lawsuit filed in Austin by the Center for Reproductive Rights, Planned Parenthood and the American Civil Liberties Union on behalf of several other groups.

Proponents of the measure, which had the backing of the Republican governor, cheered passage of the “heartbeat bill” as a landmark victory and denounced the lawsuit filed Tuesday.

But abortion providers say the law, known as S.B. 8, is unconstitutional and will subject them to endless lawsuits, shut down clinics and reduce services — and they say it will isolate abortion patients by undermining support networks for pregnant women.

“The state has put a bounty on the head of any person or entity who so much as gives a patient money for an abortion after six weeks of pregnancy, before most people know they are pregnant,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement. “Worse, it will intimidate loved ones from providing support for fear of being sued.”

Texas governor signs abortion bill banning procedure as early as six weeks into pregnancy

Although abortion patients themselves cannot be sued under the Texas law, a controlling parent, disapproving neighbor or abusive spouse could target the woman’s doctor in court to try to stop the abortion.

Marva Sadler, director of clinical services for Whole Woman’s Health, which operates four clinics in the state, has encountered antiabortion protesters at work for more than 12 years and expects that she and her colleagues will be targeted by lawsuits.

“It’s really, really scary for me to imagine the people we pass through to go to work on a daily basis, who yell at us . . . now have the authority and ability to sue me at will,” Sadler said. “Not only is it an attack on the access, but it absolutely feels like a personal threat as well.”

Texas state Sen. Bryan Hughes (R), who sponsored the bill, said he “welcomes the opportunity to have this case heard in court.” The measure, he said, is about “protecting unborn babies and stopping illegal abortions.”

More than 85 percent of women who choose to terminate their pregnancies in Texas are at least six weeks into pregnancy, according to advocates, so the law would prevent nearly all abortions in the state, and operations at Sadler’s clinics would decrease, she said.

Similar measures that ban abortion after a doctor detects a fetal heartbeat, or around six weeks of pregnancy, have passed recently in other states, including this year in Idaho and Oklahoma. But federal judges have prevented those measures from taking effect.

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)

The Texas law is more difficult to block, opponents say, because it is enforced by private lawsuits, not state government officials who are typically the defendants in federal constitutional challenges.

Instead, those behind the new federal suit are using a novel legal approach, taking aim at every state trial court judge and county court clerk in Texas, plus the attorney general and state medical boards.

They are asking a federal judge to prevent any of the state’s trial court judges, potentially more than 1,000 throughout Texas, from enforcing the law and to block court clerks from accepting the lawsuits.

Mark Lee Dickson, the director of Right to Life of East Texas, who has encouraged people to take action and offered to recommend lawyers, is also named as a defendant.

In a Facebook post Tuesday, Dickson wrote, “The only thing more ridiculous than this lawsuit is the fact that we have people, right here in Texas, who are fighting to end the lives of innocent unborn children.”

Texas Gov. Greg Abbott (R) signed the legislation in May and celebrated what he called a victory for Texans.

“Our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion,” Abbott said at a closed-door ceremony. “In Texas, we work to save those lives. That’s exactly what the Texas Legislature did this session.”

Supreme Court to review Mississippi abortion law that advocates see as a path to diminish Roe v. Wade

The lawsuit comes as abortion opponents have passed state regulations and are eyeing a more conservative Supreme Court to reexamine Roe v. Wade’s guarantee of the right to choose an abortion.

The justices announced in May that they will review a restrictive Mississippi law that would ban almost all abortions after 15 weeks of pregnancy. In taking the case, the court said it will examine whether “all ­pre-viability prohibitions on elective abortions are unconstitutional.”

Before the Texas measure passed this spring, more than 300 lawyers in the state, including former judges and law professors, wrote to legislators raising constitutional concerns.

They urged the lawmakers not to “weaponize the judicial system” by exempting these lawsuits from “the normal guardrails that protect Texans from abusive lawsuits and provide all litigants a fair and efficient process in our state courts.”

Opponents of the law also say it will disproportionately affect Black and Hispanic communities and low-income women who already encounter barriers to health care. Nationally, 3 out of 4 abortion patients are poor or have low incomes and struggle to cover the cost of the procedure, transportation to a clinic or child care, according to the lawsuit. Data compiled by the state indicates that nearly two-thirds of all abortions performed in Texas during the past five years involved Black and Hispanic women.

Marc Hearron, senior counsel for the Center for Reproductive Rights, said that if the measure is not blocked before September, the potential lawsuits will force doctors and health clinics to spend time and money defending themselves in court and put providers at risk.

The law “allows any ideologically motivated party out there to bring a case across the state,” Hearron said. Lawmakers, he said, intended to “distract and prevent providers from being able to provide constitutionally protected health care to their patients.”