Governor Greg Abbott of Texas signed a law in May that allows private citizens to file a civil lawsuit against an abortion provider or anyone who “aids or abets the performance or inducement of abortion” if an abortionist has detected the baby’s heartbeat during an ultrasound. Aiding and abetting includes paying for or reimbursing the costs of killing an unborn baby through insurance.
Naturally, those who believe women have a right to kill their unborn babies for any reason tried to stop the law’s enforcement. Abortion advocates say the law conflicts with Roe v. Wade’s viability standard for killing the unborn.
Abortion advocacy groups, including Whole Woman’s Health, which kills unborn babies, asked a court to block the law. The defendants — Texas Medical Board, the Texas Board of Nursing, the executive director of the Texas Board of Pharmacy, and the executive commissioner of the Texas Health and Human Services Commission — argued that they have sovereign immunity and lack standing in the lawsuit and sought to dismiss the case.
Challenges against the law moved through the courts. The U.S. Court of Appeals for the Fifth Circuit allowed the law to stand and sent the case to the Texas Supreme Court to determine whether the defendants had the authority to enforce the law. The Texas Supreme Court ruled they did not have the authority. The legislature wrote the law as a right of action for private citizens, not state officials. A three-judge panel of the Fifth Circuit recently made this ruling (PDF – two pages)
Having received the ruling of the Texas Supreme Court that named official defendants may not enforce the provisions of the Texas Heartbeat Act, S.B. 8, this court REMANDS the case with instructions to dismiss all challenges to the private enforcement provisions of the statute and to consider whether plaintiffs have standing to challenge Tex. Civ. Prac. & Rem. Code Ann. Sec. 30.022. [emphasis added]
One judge disagreed with the other two judges on dismissing the challenges. He believes the Fifth Circuit doesn’t have the authority to dismiss.
Gov. Abbott tweeted that the Fifth Circuit’s decision “effectively ends all challenges to Texas Heartbeat Act.”
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