The Texas Abortion Law Is Unconventional Because It Had to Be
Wall Street Journal Op-Ed By: Senator Bryan Hughes
(View original publication here)

There has been so much ill-informed commentary on Texas Senate Bill 8, the Heartbeat Act, that I feel compelled to explain its provisions and defend its logic. I am the author of the bill, which Gov. Greg Abbott signed in May.

The law does not ban abortions after six weeks. It requires that a physician performing an abortion first check for a fetal heartbeat. If there is a heartbeat, the physician may not abort the child. When a physician performs an abortion without checking for a heartbeat, or finds a heartbeat and performs the abortion anyway, he has performed an illegal abortion.

 Unlike other such laws passed in other parts of the country, the Heartbeat Act does not empower any governmental authority to mete out punishment for the crime. Instead it decrees that the doctor may be sued for breaking the law.

The mother cannot be sued, and we have bolstered programs to support expectant mothers. Last year the state’s Alternatives to Abortion program provided support to more than 100,000 pregnant women and adoptive parents through counseling, classes, car seats, diapers and other necessities. This year we added more than $20 million to the program, bringing total funding to over $100 million.

The law departs from conventional enforcement channels, obviously. Most 19th- and 20th-century abortion laws prohibited or regulated the practice in the traditional way. But that is much harder to do thanks to the Supreme Court’s Roe v. Wade decision of 1973—a ruling acknowledged even by liberal scholars to be a travesty of constitutional interpretation.

One of the numerous unfortunate consequences of Roe is that many people mistakenly believe any regulation on abortion must be illegitimate. This is not so. The Supreme Court does not have the power to declare subjects off limits to democratically elected legislatures.

Yet prosecutors from across the country—including district attorneys from Dallas, Bexar, Nueces and Fort Bend counties in Texas—have announced their refusal to enforce laws regulating abortion, even before they become law and before they’re litigated. Even if Roe is overturned, they say, they won’t enforce democratically passed abortion laws. If officials sworn to enforce state laws pre-emptively decide they won’t do it, even when the laws are passed and ratified and have not been challenged in the courts, state legislators are obliged to get creative.

Many crimes have a civil analog. Someone who commits a criminal assault, for instance, may be sued in civil court for assault and battery (recall the civil O.J. Simpson trial). Someone who steals property from another may be pursued for the civil tort of conversion. In almost every case, the person wronged, and therefore the person who brings the claim, is the plaintiff.

In the case of abortion, the wronged party has been extinguished. If we can’t depend on criminal enforcement, even if Roe is overturned, and the party who directly suffered harm cannot bring a claim, what’s left? Someone else must enforce the law.

In contexts other than abortion, citizens often sue to enforce laws that are otherwise difficult for the government to enforce through traditional channels. “Qui tam” actions, in which an individual sues on behalf of himself and the people, were enacted in the U.S. as early as the first Congress. Texas law, for example, allows individuals to sue on behalf of the state to recover money taken by Medicaid fraud.

A common objection against the Heartbeat Act warns that left-leaning states may use similar laws to punish behavior progressives don’t like. The Journal’s editorial board asks: “Could California allow private citizens to sue individuals for hate speech? Or New York deputize private lawsuits against gun owners?” Those are fair questions, but Texans are not responsible for what progressive politicians in California and New York do. In any case, the right to keep and bear arms and the right to free speech are literally present in the U.S. Constitution, whereas the “right” to abortion is a fantasy spun by the ludicrous logic of Roe v. Wade.

I believe life begins at conception, and I believe most Texans are in line with that understanding of human personhood. If they are not, we have free and fair elections in which they can make their differences understood. Elected officials in other states may take a different view and they are not beholden to Texas’ voters.

The Heartbeat Act was necessary because Roe v. Wade attempted to take the question of abortion out of the hands of American democracy. Like it or not, states will keep crafting unconventional means of regulating abortion until the Supreme Court puts the question back where it belongs.