The Texas Abortion Law Is Unconventional Because It Had to Be

After Roe v. Wade, many people think abortion is off limits to democracy. It isn’t.

Source: The Texas Abortion Law Is Unconventional Because It Had to Be

There has been so much ill-informed commentary on Texas Senate Bill 8, the Heartbeat Act, that I feel compelled to explain its provisions and defend its logic. I am the author of the bill, which Gov. Greg Abbott signed in May.

The law does not ban abortions after six weeks. It requires that a physician performing an abortion first check for a fetal heartbeat. If there is a heartbeat, the physician may not abort the child. When a physician performs an abortion without checking for a heartbeat, or finds a heartbeat and performs the abortion anyway, he has performed an illegal abortion.

Unlike other such laws passed in other parts of the country, the Heartbeat Act does not empower any governmental authority to mete out punishment for the crime. Instead it decrees that the doctor may be sued for breaking the law.

The mother cannot be sued, and we have bolstered programs to support expectant mothers. Last year the state’s Alternatives to Abortion program provided support to more than 100,000 pregnant women and adoptive parents through counseling, classes, car seats, diapers and other necessities. This year we added more than $20 million to the program, bringing total funding to over $100 million.

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Many crimes have a civil analog. Someone who commits a criminal assault, for instance, may be sued in civil court for assault and battery (recall the civil O.J. Simpson trial). Someone who steals property from another may be pursued for the civil tort of conversion. In almost every case, the person wronged, and therefore the person who brings the claim, is the plaintiff.

In the case of abortion, the wronged party has been extinguished. If we can’t depend on criminal enforcement, even if Roe is overturned, and the party who directly suffered harm cannot bring a claim, what’s left? Someone else must enforce the law.

In contexts other than abortion, citizens often sue to enforce laws that are otherwise difficult for the government to enforce through traditional channels. “Qui tam” actions, in which an individual sues on behalf of himself and the people, were enacted in the U.S. as early as the first Congress. Texas law, for example, allows individuals to sue on behalf of the state to recover money taken by Medicaid fraud.