Texas Heartbeat Act

Texas Senate Bill 8, informally and unofficially known as the Texas Heartbeat Act, is a legislative bill passed by the Texas Legislature during its regular session in 2021. It became the 14th state to pass the Heartbeat Bill. The principal author of the legislation is the Republican state Representative Briscoe Cain of suburban Houston, a young but long-time member of the pro-life community.

The legislation, which took official effect on September 1 (the start of the state's fiscal year, when all new legislation formally takes effect in most cases), would prevent abortions once a fetal heartbeat is detected (generally, within six weeks after pregnancy) except in cases of medical emergency.

However, it has a unique enforcement provision: no "officer or employee" of the state or any local government has authority to enforce the Act, and thus opponents of the law have no one to sue to try to block it. Instead, any private citizen may enforce the Act against 1) the abortion provider who performed the procedure, 2) any insurance company which covered the cost, or 3) any person "aiding and abetting" in the abortion (notably, however, the woman who had the abortion is specifically exempt from being sued). If successful, the private citizen may obtain an injunction, along with $10,000 per instance along with court costs and attorneys' fees.

It is the latter provision which has proven controversial: ride-share service Lyft has already agreed a "Drivers Defense Fund" to reimburse any of its drivers who are sued under the act (who may or may not even know they took a woman to an abortion appointment, as the rider is not required to tell the driver the purpose of a trip, and the driver has no right to ask; competitor ride-share service Uber later announced they would do likewise), and Texas Right To Life (which wasn't actively supporting the bill initially) has had its website taken down by its host provider (the infamous GoDaddy.com, known for its risque advertising).

Not surprisingly, abortion providers sought to enjoin the law in Federal District Court, by suing 1) the Texas Attorney General, 2) a district judge in Tyler (Austin Reeve Jackson, who was endorsed by prominent pro-life groups in his campaign; East Texas is also where the abortion sanctuary city movement started), 3) Judge Jackson's clerks, and 4) Mark Lee Dickson, a private citizen (and founder of the abortion sanctuary city movement), notwithstanding that by law the Attorney General, the Judge, and the Judge's staff can't enforce the act, and Dickson has sworn under oath that he has no intention of suing. The District Court refused to throw out the case, whereupon the defendants appealed to the Fifth Circuit Court of Appeals (which has appellate jurisdiction over Texas), which granted the defendants' request to stay the proceedings and refused the plaintiffs' request for an expedited judgment. Undeterred, the plaintiffs sought an emergency injunction in the United States Supreme Court; Justice Samuel Alito refused to grant one on his own authority and thus brought the matter before the entire Court.

In a 5-4 decision (Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas in the majority) the Court refused to grant an injunction. Chief Justice John Roberts, in his dissent, argued that because of the unique private citizen provision of the legislation the matter should be stayed until hearings could be held, while Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor argued that the bill was an attack on the "constitutional right" to abortion. The law remains in effect pending full oral arguments before the court.