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Texas's Abortion Bill: Who Can Sue?

Monday, November 15, 2021

Karla Vera Staff Reporter (2021 – 2022)

The Texas Heartbeat Act, or SB 8, went into effect September 1, 2021. One of the strictest abortion laws in the nation, the Texas Heartbeat Act, prohibits a physician from performing or inducing an abortion on a pregnant woman if the physician has detected a fetal heartbeat.¹ A fetal heartbeat can be detected as early as six weeks into pregnancy.² Further, the bill allows any person to bring a civil suit against anyone who performs, induces, or aids and abets the performance or inducement of an abortion after the detection of a fetal heartbeat.³ The State of Texas will award a plaintiff $10,000 in “damages” for each abortion the defendant performs or aids and abets that violates this statute.⁴ With one exception, this statute does not limit who can bring suit, so long as it is a private citizen—effectively deputizing private citizens.⁵ ⁶ Notably, the statute prohibits a third-party from bringing suit against a woman that gets an abortion.⁷ However, this means that almost any person—involved or not, related or not, familiar or not—can bring a civil suit pursuant to the Texas Heartbeat Act. But does any person have constitutional ground to bring a suit pursuant to the Texas Heartbeat Act?

What Is Judicial Standing? Judicial standing is a constitutional prerequisite a plaintiff must have to bring a lawsuit against another party.⁸ Standing has two primary requirements. First, the plaintiff must allege an actual, concrete injury.⁹ Second, the court must be able to fix or address the plaintiff’s injury with the judicial remedy the plaintiff seeks.¹⁰ This means that the plaintiff’s injury cannot be hypothetical, it must be the plaintiff’s injury, and the court must be able to provide an appropriate remedy.¹¹

An advisory opinion (or a judicial decision that involves a party with no standing) addresses a hypothetical injury, and thus, advises parties, but does not bind the parties to the court’s decision.¹² Texas courts cannot issue advisory opinions because doing so would violate two important provisions of the Texas Constitution:

  1. The separation of powers doctrine that requires separation of the State’s legislative, executive, and judicial powers. Advisory opinions give the judicial branch power which is ordinarily reserved for the executive branch.¹³

  2. The open courts provision of the Texas Constitution that states, “All courts shall be open, and every person for an injury done him...shall have remedy by due course of law.”¹⁴

Do “Deputized” Plaintiffs Have Judicial Standing? The first question a court would ask is whether a “deputized” plaintiff can allege an actual, concrete injury. What kind of harm could Person A suffer because Person B had an abortion at seven weeks, that Person C administered? Does Person A lose money, resources, or a constitutionally protected right because Person D paid for Person B’s abortion?

The second question a court would ask is whether a court could provide an appropriate remedy for a “deputized” plaintiff. Though the statute has created a $10,000 civil remedy for plaintiffs, if a plaintiff can’t allege an injury, does the money function as a remedy? If a plaintiff could plead an actual injury, does $10,000 appropriately remedy an abortion that someone else had?

Why Does This Matter? The Texas Heartbeat Act has set a dangerous precedent. The State of Texas has enlisted private citizens to enforce a law. The Texas Government has three branches of government: the judicial, legislative, and executive branch.¹⁵ But by deputizing private citizens, the Texas Government is sharing its executive power with citizens of the state. By passing a bill that allows a plaintiff to bring suit without judicial standing, lawmakers have taken the Texas Supreme Court’s power to determine judicial requirements and have given it to the legislative branch. Lastly, by forcing the judicial branch to issue advisory opinions, the Texas Heartbeat Act has disrupted the powers of all three branches of government.

To summarize, Texas’s abortion bill prohibits abortions after six weeks, and allows private citizens to enforce its provisions. The Texas Supreme Court has held that a plaintiff must have an actual injury that can be remedied by the court, but it is unlikely that a court would find a redressable injury by a deputized plaintiff pursuant to the Texas Heartbeat Act. Still, the Act remains.¹⁶


¹ Tex. Health & Safety Code Ann. § 171.204(a). ² What happens in the second month of pregnancy?, Planned Parenthood (Sept. 4, 2021, 10:01 PM), ³ Tex. Health & Safety Code Ann. § 171.208(a). Id. at § 171.204(b)(2). Id. at § 171.204(a). ⁶ The statute prohibits a person that, through sexual assault, impregnates a woman that gets an abortion to be the third-party who brings suit. Id. at §§ 171.206(b)(1), 171.208(j). Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–444 (Tex. 1993). Heckman v. Williamson County, 369 S.W.3d 137, 154 (Tex. 2012). ¹⁰ Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005). ¹¹ Id; Tex. Workers’ Comp. Com’n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995). ¹² Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). ¹³ Tex. Const. art. II, § 1; Morrow v. Corbin, 62 S.W.2d 641, 643–644 (Tex. 1933). ¹⁴ Tex. Const. art. I, § 13 (emphasis added). ¹⁵ Tex. Const. art. II, § 1. ¹⁶ As of the writing of this comment, there have been multiple federal and local efforts to repeal the law. On October 22, 2021, the Supreme Court announced that it agreed to review the constitutionality of the bill and the federal government’s efforts to repeal it on November 1, 2021.



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