Texas Abortion Law: Who Drafted The Controversial Legislation?

The Texas abortion law, also known as the Texas Heartbeat Act, was drafted by Jonathan F. Mitchell, a former top lawyer for the state of Texas. Mitchell, a conservative lawyer and legal scholar, has been involved in several prominent anti-abortion cases and has a reputation for finding legal loopholes. The Texas Heartbeat Act, which bans abortions after the detection of a foetal heartbeat, is unique in that it allows private citizens to sue anyone who performs or assists with an abortion. This aspect of the law has been highly controversial and has been criticised for circumventing Roe v. Wade, which legalised abortion across the United States.

The Texas Heartbeat Act

The Act is notable for its unique enforcement mechanism, which bars state officials from enforcing the law and instead authorizes private citizens to sue anyone who performs or assists with a post-heartbeat abortion. This feature was engineered by former Stanford law professor Jonathan F. Mitchell, based on his 2018 article, "The Writ-of-Erasure Fallacy", which noted the difficulty of challenging laws enforced solely by private citizens in pre-enforcement lawsuits.

Under the Act, any individual who is not a government employee can file a lawsuit against a person who performs or induces an abortion in violation of the law, or anyone who "aids and abets" such an abortion. The Act sets a minimum statutory damage award of $10,000 for each abortion performed or facilitated in violation of the law, in addition to court costs and attorney's fees.

The Act has been intensely controversial due to its deliberate circumvention of Roe v. Wade and its potential impact on women's autonomy, access to healthcare, and medical professionals. It has also been criticised for enabling vigilante justice and intimidation of women and healthcare providers.

The role of Jonathan F. Mitchell

Jonathan F. Mitchell, a former top lawyer for the state of Texas, played a significant role in drafting the state's abortion law, also known as Senate Bill 8 (SB 8) or the Texas Heartbeat Act. Mitchell, a private attorney with ties to conservative organisations like the Federalist Society and the Hoover Institution, has a history of involvement in culture war and religious-right legal challenges. He was described by a lawyer who worked with him as a "brilliant legal mind".

Mitchell's key contribution to the Texas abortion law was the inclusion of a private right of action, which allowed anyone, even those outside Texas, to sue abortion providers and anyone assisting someone in obtaining an abortion. This unique enforcement mechanism made it difficult for abortion providers to challenge the law in court and essentially enabled private citizens to enforce it. Mitchell first proposed this idea in a 2018 law review article, where he suggested that lawmakers could protect their legislation by including a private right of action, making it challenging to bring pre-enforcement lawsuits.

Mitchell brought this strategy to Mark Lee Dickson, an anti-abortion pastor in East Texas, and helped him craft an ordinance for the city of Waskom, Texas, that outlawed abortion within city limits through private civil enforcement. This ordinance served as a model for the state-level abortion law, SB 8, which was introduced by Senator Bryan Hughes. Mitchell assisted Hughes in drafting the bill, adapting the municipal ordinances he had written to avoid pre-enforcement judicial scrutiny by taking state officials out of the enforcement process.

Mitchell's legal strategy has been described as "dangerous" and "radical", as it seeks to grant Republican state lawmakers maximum power by thwarting judicial review. His work on the Texas abortion law reflects his belief that the judiciary has too much power and that laws should be shielded from court challenges. Mitchell's ideas have influenced legislation beyond Texas, with several other states considering or adopting similar measures to restrict abortion access.

The Supreme Court's stance

The Supreme Court's initial stance on the Texas abortion law was to allow it to take effect. On September 1, 2021, the Court denied a request for emergency relief from Texas abortion providers, marking the first time a state successfully imposed such a ban since Roe v. Wade. This decision was met with outrage from liberals and cheers from conservatives. President Joe Biden and other critics assailed the Court's inaction, arguing that the law restricts abortion rights and contradicts the landmark Roe v. Wade decision that legalized abortion nationwide in 1973.

The Texas Heartbeat Act is unique in its enforcement mechanism. Unlike other abortion laws, it prohibits state officials from enforcing the ban and instead authorizes private individuals to sue anyone who performs or assists with a post-heartbeat abortion. This feature has made it exceedingly difficult to challenge the law in court. Abortion providers have struggled to obtain legal relief from the threat of private civil-enforcement lawsuits, even when lower courts rule the law unconstitutional.

The Supreme Court has heard several challenges to the Texas abortion law but has yet to issue a definitive ruling. In October 2021, the Court declined to overturn a lower court's stay of a preliminary injunction blocking the law's enforcement. This inaction allowed the law to remain in effect and highlighted the challenges of pre-enforcement judicial review due to the private enforcement mechanism.

In June 2024, the Supreme Court dismissed an appeal from the Biden administration, which sought to enforce federal guidance requiring hospitals to perform abortions in emergency medical situations, even in states with strict abortion bans like Texas. The Court's decision upheld a lower court's ruling that rejected the Biden administration's claim that federal law mandates access to emergency abortion care, even in states with restrictive abortion laws.

The law's enforcement

The Texas Heartbeat Act, Senate Bill 8 (SB 8), is a law that bans abortion after the detection of embryonic or fetal cardiac activity, which usually occurs around six weeks into a pregnancy. The law came into effect on September 1, 2021, after the U.S. Supreme Court denied a request for emergency relief from Texas abortion providers. It was the first time a state successfully imposed a six-week abortion ban since Roe v. Wade, and the first abortion restriction to rely solely on enforcement by private individuals through civil lawsuits, rather than state officials enforcing the law with criminal or civil penalties.

The Act authorises members of the public to sue anyone who performs or facilitates an illegal abortion for a minimum of $10,000 in statutory damages per abortion, plus court costs and attorneys' fees. The Act also allows any private individual to sue anyone who performs or induces, or "aids and abets", a post-heartbeat abortion. Although the statute shields abortion patients from being named as defendants, anyone else who "aids or abets" an unlawful abortion can be sued in addition to the physician performing the procedure. This includes clinic staff, counsellors, lawyers, financiers, and those who provide transportation to an abortion clinic, including taxi or ride-hailing drivers.

The Act also contains a provision that specifically bans public enforcement of the law by state or local officials and insists that the sole means of enforcement is through civil-enforcement lawsuits brought by private individuals. The Act also insulates the state of Texas and its officials from being sued by preserving their sovereign immunity and forbidding them to enforce the statute in any way.

The Act allows defendants to escape liability if they demonstrate that the relief sought by the plaintiff will impose an "undue burden" on women seeking abortions. However, the Act also provides that this "undue burden" defence is unavailable if the Supreme Court overrules Roe v. Wade or Planned Parenthood v. Casey, even if the abortion occurred while those decisions were in effect, and it establishes a four-year statute of limitations.

The Act also allows civil-enforcement lawsuits to be filed in the plaintiff's home county, meaning that anyone who violates or assists a violation of SB 8 could be forced to defend themselves in any one of Texas's 254 counties, including conservative counties where judges and juries are likely to be hostile to abortion.

The Texas Heartbeat Act is unique in that it is enforced exclusively through civil lawsuits brought by private citizens, rather than criminal or civil penalties imposed by state officials. This was engineered to deny abortion providers the opportunity to seek federal-court injunctions against the enforcement of the statute. Since the law cannot be enforced by state officials but only by private individuals, it is difficult for abortion providers to identify the proper defendants to sue in a pre-enforcement lawsuit, which prevents them from challenging the constitutionality of the act prior to its taking effect.

The bill's sponsors

The Texas Heartbeat Act, Senate Bill 8 (SB 8), was introduced by Senator Bryan Hughes, with a companion bill (HB 1515) filed by Representative Shelby Slawson in the Texas House of Representatives. The bill was a legislative priority for Republican lawmakers for the 2021 regular session.

The bill was sponsored by several lawmakers in the Texas House of Representatives, including Briscoe Cain, Phil King, Dan Flynn, Tan Parker, and Rick Miller.

The private civil-enforcement feature of the law, which is central to its design, was engineered by former Stanford law professor Jonathan F. Mitchell. Mitchell is a former top lawyer for the state of Texas and served as solicitor general from 2010 to 2015. He has also served as a visiting professor at several notable law schools, including the University of Chicago, Stanford University, and the University of Texas at Austin.

Mitchell's role in crafting the Texas Heartbeat Act was significant. He first brought the idea to Mark Lee Dickson, an East Texas anti-abortion pastor, in 2019. Dickson then championed similar laws to be passed in other towns and cities in Texas, including Lubbock. Mitchell helped Hughes draft the bill for the state, drawing on the municipal ordinances he had written to avoid pre-enforcement judicial scrutiny.

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