The Texas Fetal Heartbeat Act is unprecedented and unconstitutional and its legislators surely knew this when they passed the statute. By barring a woman from terminating her pregnancy 16 weeks before viability, the law on its face violates long-established constitutional precedents. See Planned Parenthood of Pennsylvania v. Casey, 505 U.S. 833 (1992) (“right of the woman to have an abortion before viability and to obtain it without undue interference from the State”); Roe v. Wade, 410 U.S. 113 (1973) (prior to viability, fundamental right a woman, prior to viability, to consult with her physician and obtain abortion “free of interference by the State”). Moreover, the Texas law was intentionally written to insulate the state from being sued; it delegates enforcement to bounty hunters who can collect $10,000 and court costs for reporting violators. Indeed, a Texas doctor, Alan Braid, openly acknowledged violating the law and is presently being hauled into court by two such vigilantes. The law makes no exception for rape, sexual abuse, or incest (although, in a macabre gesture, the law declares that “the person who impregnated the abortion patient” may not bring a civil action to recover the bounty). The law targets not only doctors and clinics but any person who assists a woman in obtaining an abortion—for example, a person who drives the woman to a clinic or loans money to a woman to pay for the abortion. These individuals can be sued even if they don’t know that an abortion is to be performed. The refusal of the Supreme Court to block enforcement of the law has emboldened proponents and deepened public cynicism of the court.
The 25-page law includes strange and unusual provisions. The law declares that “there is no right to abortion” even before a fetal heartbeat is detected; there is no defense that the law is unconstitutional; federal decisions are not binding on a state court in which an action has been brought; a challenger has no standing to assert the rights of the woman seeking an abortion; a claim that the law imposes an undue burden on the right to an abortion is unavailable; there is no defense if the Supreme Court later overrules Roe and Casey, even though the conduct occurred before the overruling; the law survives even if the offensive provisions are declared unconstitutional and severed from the rest of the law; elaborate documentation by a doctor is required as to what tests he or she performed to determine a fetal heartbeat and why they believed there was a medical emergency; there is no definition of a medical emergency; and private vigilantes have four years to report violators.