In the past few years, anti-abortion activists have had great success in state legislatures passing so-called “heartbeat bills,” which outlaw abortion six weeks into a pregancy. The laws are supposedly designed to ban abortion upon detection of a “fetal heartbeat,” though that term is misleading at best. While ultrasounds can detect a flutter of activity from an embryo at six weeks, that embryo is not yet medically deemed to be a fetus and has not yet developed a heart.
Six weeks after conception is not long enough to gain a heartbeat. It’s also not usually enough time for a woman to miss a period, confirm pregnancy, find a provider, and schedule and complete an abortion procedure. Proponents of six-week bans know this. Their strategy is to institute an effective ban on abortion without outright prohibiting it, which remains unconstitutional.
Nearly a dozen states have passed “heartbeat bills” since 2018 alone, but none have actually gone into effect, since they violate the precedent first established by Roe v. Wade and then modified by Planned Parenthood v. Casey, which holds that states can’t rule abortion illegal before twenty-two weeks. This legal precedent is set to be challenged, but until it’s overturned, states’ six-week bans are tied up in litigation.
In light of these legal obstacles, Texas anti-abortion activists came up with an innovative twist designed to make their “heartbeat bill” — Senate Bill (SB) 8, which Texas governor Greg Abbott signed into law in May — more lawsuit-resistant.
Instead of assigning responsibility for enforcing the six-week provision to the government and leaving the state vulnerable to constitutional challenge, SB 8 deputizes private citizens to bring lawsuits against medical practitioners and others who help women access abortions after six weeks. It also incentivizes individuals to sue service providers by awarding plaintiffs up to $10,000 plus the cost of attorney fees for each successful lawsuit.
Plaintiffs do not have to live in Texas. If implemented, the Texas law would essentially transform the nation’s grassroots anti-abortion movement into a league of state-sponsored bounty hunters. Those with targets on their back would include not only abortion clinics in Texas but also organizations that help along the way, including abortion funds and groups that provide support services like lodging and transportation.
One of these groups is the Lilith Fund, the oldest abortion fund in Texas, which offers direct financial services to people seeking abortion in southern and central Texas. Erika Galindo, the organizing program manager at the Lilith Fund, worries that, under the six-week ban, random aggrieved people could start suing her and her coworkers, the board, and the organization’s volunteers.
“Regular citizens anywhere in the country, not just Texans, are able to enforce this law by suing abortion funds, providers, anybody who they can claim helped somebody else get an abortion after six weeks,” says Galindo. Patients themselves could not be sued, but anyone who helped facilitate the process would be vulnerable. The lawsuit can be brought by anyone, regardless of whether they have any connection to the patient.
Galindo adds that, normally, organizations are able to recoup attorney fees when they’re slammed with lawsuits like these that are later dismissed, but that the Texas law is written so that it would cover court fees for plaintiffs but not for defendants. “People could just keep suing us until we were forced to close business because we could no longer afford to operate,” she says.
The fate of SB 8 remains uncertain in light of a legal challenge mounted by the ACLU, Planned Parenthood, and the Center for Reproductive Rights on behalf of multiple other groups, including the Lilith Fund. But if does go into effect in September as planned, it will greatly energize the grassroots anti-abortion base while sapping the energy of the opposing side. “The anti-abortion movement in Texas is already very energized and organized, and this is definitely adding fuel to their fire,” says Galindo.
The purpose of the bill’s diffusion of responsibility is to prevent legal challenges, but it’s also smart movement politics. Rather than rely on the state to go after their opponents, individuals with anti-abortion beliefs will be allowed, encouraged, and financially incentivized to take action themselves.
This invitation to action has the potential to excite and galvanize the base, and to bring more people further into the core of the anti-abortion movement. That will be to anti-choice advocates’ benefit, as a movement full of activists is always stronger than a movement full of supporters. Also to their benefit is the fact that the $10,000 “bounty” and court fee waiver is essentially a public subsidy for anti-abortion movement activity.
Even if SB 8 is ultimately blocked like the rest of the nation’s six-week bans, it has already had one detrimental effect. A poll commissioned by several reproductive access groups last summer showed that a large majority of Texans, both for and against abortion, either don’t know that abortion is legal or think that abortion is illegal in the state. The passage of SB 8 further confuses the matter.
“People see these headlines and think it’s illegal or are not sure where these things are court,” says Galindo. “There’s a lot of misinformation being spread, and that, I think, is just as dangerous as the anti-abortion Right getting a boost to their organizing.”
While organizations like abortion funds and clinics are likely to be the prime target of the lawsuits resulting from SB 8, working-class women who rely on those organizations will suffer the most from cutoff access. They are already the least likely to live near a clinic and to be able to afford time off, transportation, and lodging for overnight stays. Going out of state will not be an option for many of them, especially if abortion funds shutter.
“I don’t know what our life is going to look like on September 1,” says Galindo, “but I am pretty nervous.” Everyone should be — not just for the organizations that provide crucial abortion health care and access services, but for the working-class women who depend on them.