Texas’s new abortion law, Senate Bill 8 (SB 8), took effect Sept. 1, effectively banning abortions performed after six weeks of pregnancy. At first, the Supreme Court failed to impose a requested injunction; then, a five-justice majority affirmatively declined to block the law. The law encourages private citizens to sue anyone they think has been involved in such an abortion: abortion providers; anyone who may have helped a pregnant person access an abortion; or anyone intending to do either of the above. As a result, antiabortion activists have stopped the majority of abortions in the state, for now.
Many are reporting on how the Texas law affects the national landscape of abortion politics. But hidden in this story is another one about how conservatives are shifting political resources and legal strategies. In Texas SB 8, we see conservatives adopting and modifying the progressives’ playbook to use it against them.
Two features of Texas’s abortion law will revolutionize abortion politics and access
Senate Bill 8 has two features that change abortion politics and access. First, because the law is triggered by detectable fetal “cardiac activity,” women in Texas are now effectively barred from seeking an abortion after the sixth week of pregnancy. Not only is this before many people realize they are pregnant; it is also earlier than the established legal standard that allows states to ban abortion after the fetus is considered viable, around 24 weeks into the pregnancy.
Second, the law creatively tries to circumvent court rulings that have barred states from imposing an “undue burden” on anyone seeking an abortion before viability: It removes the state from the equation altogether. Instead of outright banning abortions at six weeks, Texas has empowered “any person, other than an officer or employee of a state or local government entity in this state,” to sue not only abortion providers, but anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion” or anyone who “intends to” perform, aid, or abet an abortion after detecting cardiac activity.
In brief, Texas has handed power to antiabortion activists to enforce what the state thus far cannot. And the Supreme Court’s five-justice majority has, for now, given other state legislatures the green light to follow suit.
This term, the Supreme Court will hear a case that could kill Roe v. Wade — or let it die slowly.
Texas’s abortion law is an example of conservatives learning from progressives
Texas SB 8 should thus be seen as a strategic “conservative innovation” — although the innovation is borrowed and adapted from progressive strategies conservatives once maligned.
Progressives have long employed what is sometimes referred to as “private attorney general” powers in rights enforcement. That is, instead of empowering state authorities to manage the enforcement of laws, legislatures have given citizens the right to bring lawsuits to sue for damages.
Progressives did this at first because conservative opponents thought that it would dull the effects of civil rights laws. Conservatives thought that individual Black people, women and others wouldn’t have the funds to sue — and if they did, that courts would interpret anti-discrimination laws narrowly.
But to the surprise of both political camps, a burgeoning “support structure” of nonprofit and private civil rights lawyers launched a steady stream of litigation. A receptive — or at least, not hostile — judiciary converted these private rights of action into robust means to civil rights ends. Democrats came to see this as a legitimate and pragmatic means of enforcing a range of areas covered by the regulatory state, from environmental regulation to employment discrimination to food safety.
Republicans have tried to dismantle enforcement through courts and civil litigation in such areas as civil rights, labor law, product liability and more. That has involved conservatives maligning “activist judges” who have enabled these cases as well as the lawyers, culture, and legal rules involved in what they see as “frivolous” and “harassment” lawsuits.
Now they have adopted those tactics and pushed them to an extreme by opening litigation to anyone opposed to abortion. Texas’s SB 8 enables litigation against abortion providers and their supporters, presumably aimed at pushing them out of business. Each successful suit can reap “damages in an amount of not less than $10,000 for each abortion” and the ability to recover attorney fees. That adds a financial incentive to antiabortion activists’ ideological motivations. The law also bars courts from awarding “costs or attorney’s fees … to a defendant in an action brought under this” law. Even if abortion providers win the lawsuits, in other words, they will incur costs — financial, emotional and otherwise — while their opponents’ costs and potential losses are limited.
This kind of enforcement mechanism is possible because conservatives now have an army of lawyers
The conservatives who have embraced this form of private action know they’re now backed by a robust conservative legal “support structure” of organizations and lawyers, some trained in specifically conservative law schools. In the 1980s and 1990s, first secular and then religious conservatives created legal institutions to compete in, and more recently restructure, the courts. These developments include not just conservative causes generally but also pro-life activism specifically.
And they are ready to enforce this law. This week, John Seago, the legislative director for Texas Right to Life, told NPR, “We have a network of pro-life attorneys and pro-life activists who even now give us tips and send us information that may lead one to believe that the law is being broken by the abortion industry.”
Combined with an increasingly receptive Supreme Court, conservatives may have found a way to restrict abortion access to a degree unseen since Roe v. Wade was decided.
Editor’s note: This piece has been updated to clarify the legal strategy.
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Joshua C. Wilson is a professor and department chair of political science at the University of Denver, author of “The Street Politics of Abortion: Speech, Violence, and America’s Culture Wars” (Stanford University Press, 2016) and most recently co-author with Amanda Hollis-Brusky of “Separate But Faithful: The Christian Right’s Radical Struggle to Transform Law & Legal Culture” (Oxford University Press, 2020).