FORT WORTH, Texas — While I was early to praise Texas’ heart-beat law, I’ll admit that I had some concerns and reservations, too.
The law’s unusual construction — designed to evade pre-enforcement judicial review and empower citizens — caused worry for its long-term prospects.
Would it withstand relentless judicial challenges?
Remarkably, yes.
In December, the U.S. Supreme Court declined to enjoin the law, but allowed for abortion providers to sue the state.
However, earlier this month, the Texas Supreme Court ruled that state licensing officials have no enforcement authority and therefore cannot be sued by clinics seeking to end the restrictions, making it all but impossible for abortion providers to get legal traction.
So far, so good.
But would a law that relies on enforcement by private citizens be effective at reducing the number of lives ended by abortions?
The answer here is also, yes.
The chilling effect on Texas abortion clinics is notable and real.
There is debate about exactly how much the law has reduced abortions.
Initial estimates suggested abortions were down by as much as half.
Nearly seven months in, other data suggest those estimates do not account for the number of women who sought abortions out of state or ordered abortion pills online (a practice that itself often subverts the law).
Researchers from the University of Texas at Austin believe the actual reduction in abortions is a more modest 10%.
Still, the perfect must not be the enemy of the good.
The law is, as John Seago, legislative director of Texas Right to Life explained, “actually protecting pre-born children from elective abortion.”
For most people seeking to end the scourge of abortion, reducing it in any measure is a great place to begin.
So the law is operating as promised.
But can Texas’ success be replicated by other other states? Can this law really be a template for pro-life legislatures?
As of this week, the answer here is also a resounding yes, with Idaho’s governor signing a bill modeled after the Texas law.
Like the Texas heart-beat law, Idaho’s new law relies on the use of private enforcement, meaning that individuals and not state actors, may sue those who perform, procure or assist in abortions (expectant mothers excluded).
That means that after a fetal heartbeat is detected, usually around six weeks gestation, participating in an abortion in any meaningful way exposes that person to a hefty financial burden.
Idaho’s law does allow exceptions for rape and incest, something the Texas law did not do and probably should have (and not because the lives of pre-born children conceived by rape have any less inherent value).
As Idaho Gov. Brad Little noted in his signing statement, victims of sexual assault may lack the support systems needed to file police reports, as the law requires, further adding to their trauma, and even offering monetary incentives to family members of rapists.
That sounds a little like the arguments made by some critics of the Texas law, who argued it would create vigilantes and opportunists. That hasn’t appeared to be the problem many feared it would be.
But Little also worried that the private enforcement mechanism used in the law would be replicated by Democratically-controlled legislatures in assaults on civil liberties, like free exercise or the right to bear arms.
And here’s where his concerns might be warranted.
A bill has been introduced in California that would create a private right of action for citizens to use against those who manufacture, distribute, transport, import into California, or sell certain kinds of guns or “ghost gun kits.”
The legislation was explicitly designed after Texas’ heartbeat bill.
Still, the future of that bill is unclear. Even if it were to pass, its ultimate fate may not be the same as the Texas law or that of abortion more broadly.
The Supreme Court is, after all, scheduled to rule in Dobbs v. Jackson, which considers the constitutionality of a 2018 Mississippi state law that banned abortion operations after the first 15 weeks of pregnancy. And the court has already signaled that a lot could be changing in the world of abortion very soon.
In the near-term, Texas’ heartbeat law seems to be making a difference.
It’s been durable, effective and is inspiring other state legislatures to follow its lead.
