Republican state legislators who oppose abortion rights are eyeing a just-implemented measure in Texas as a model for opening a new front in the war over reproductive choice.
The measure that took effect last week bans virtually all abortions after a fetal heartbeat is detected, about six weeks into a pregnancy, after the U.S. Supreme Court declined to block the law in a 5-4 decision. The law does not make exceptions for pregnancies that result from rape or incest.
Most controversially, it allows almost anyone in Texas to file a civil lawsuit against abortion providers and those who aid a person seeking an abortion after the six-week mark. The person bringing suit would not have to be connected in any way to have legal standing to sue, and they could be awarded at least $10,000 plus attorney’s fees if they win.
That provision, legislators hope, will block abortion rights advocates from challenging the law in court. They cannot bring suit against Texas, because the government is not the entity enforcing the law.
Legislators in other states said they see the measure as a new approach to break what has become a standard legal back-and-forth: A Republican-led legislature passes a measure to restrict abortion rights, opponents sue to block the measure and a federal judge places it on hold.
“States like Missouri that have done everything in our power to make abortion not just illegal but unthinkable are seeing another potential tool to try to be able to do that,” said Missouri state Rep. Mary Elizabeth Coleman (R), chair of the House Children and Families Committee and one of the lawmakers exploring how to bring a similar measure to her state. “I think this is really an interesting idea that is really an expansion of tort laws.”
Florida Senate President Wilton Simpson (R) has said his chamber will consider a similar bill. Indiana House Speaker Todd Huston (R) said his members are closely watching the litigation that follows Texas. And in South Dakota, Gov. Kristi Noem (R) issued an executive order on Tuesday restricting telemedicine abortions and some abortion medications.
Republican officials in Arkansas and South Carolina have signaled their interest in exploring the “heartbeat” bill. Pennsylvania state Sen. Doug Mastriano (R), the author of his state’s version of the six-week ban, said he was heartened by the Supreme Court’s ruling, a potential sign that the court is open to overturning Roe v. Wade.
Abortion rights advocates see Ohio as the state most likely to attempt the first copycat effort. Republicans control the legislature by a wide margin, and unlike most other states that have adjourned for the year, Ohio legislators are in session year-round.
“Because of the coordinated and creeping nature of antiabortion tactics, it appears likely that hostile lawmakers in other states may try to pass similar legislation” to the Texas bill, a report from the abortion rights group Guttmacher Institute last month reads. “That poses new dangers for abortion rights, because this type of legislation is a new and untested approach that we may see used in ever more insidious ways to circumvent or challenge U.S. Supreme Court rulings upholding abortion rights.”
Coleman said she would draft a bill to file in December, in advance of next year’s legislative session in Missouri.
“I would expect that this is something that we will see move, but the timing of that I don’t really know,” she said in an interview Wednesday. “Our speaker and [Senate president] pro tem and governor have shown a long history of being pro-life leaders.”
Fourteen states have passed measures barring most abortions after the six- or eight-week marks in the past decade, all of which have been put on hold to some degree by federal courts.
Of those states, a dozen — Alabama, Arkansas, Georgia, Idaho, Iowa, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Carolina and Tennessee — are controlled by Republican legislatures and a Republican governor. The Guttmacher Institute is keeping a close eye on Arizona, Indiana, Montana, Nebraska, South Dakota, Utah and West Virginia, all states that are now completely under Republican control.
More anti-abortion measures have passed legislatures this year than in any previous single year, according to the Guttmacher Institute’s figures. Legislatures have passed a total of 97 new restrictions on abortions, surpassing the 89 that were passed in 2011.
Legislators and advocates on both sides of the abortion rights issue are keeping a careful eye on a ban on abortions after 15 weeks of pregnancy passed in Mississippi. The Supreme Court has agreed to take up the case, now that six Republican-appointed justices make up a majority.
Regardless of the outcome of that case, the Texas measure has opened a new opportunity for anti-abortion rights advocates to challenge the legal status quo.
“If you look at the history of the pro-life movement, we have done and continued to do everything in our power at all times and always to try to end abortion. It’s not a matter of let’s wait for this, let’s wait for that,” Coleman said. “Having an opportunity to open up another avenue is absolutely the right thing to do.”