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ACLU Sues to Block Texas Abortion Ban

July 14, 2021 by Dan McCue
Texas Gov. Greg Abbott

The American Civil Liberties Union on Monday sued the state of Texas to block “radical” new abortion restrictions currently set to take effect on Sept. 1.

The ACLU filed the lawsuit on behalf of Texas abortion providers — led by Whole Woman’s Health — doctors, health center staff, several abortion rights funds and members of the clergy, who claim the new law violates the Texans’ constitutional right to privacy and liberty as established by Roe v. Wade nearly 50 years ago. 

The complaint states the law also violates the constitutional rights of abortion providers and supporters, including their right to equal protection under the law, and their First Amendment rights to free speech and access to the courts.

Texas law (SB 8) bans abortion as early as six weeks of pregnancy and includes an unprecedented provision that asks private individuals — including anti-abortion protestors with no connection to the patient — to file lawsuits seeking “enforcement” of the ban. 

The law also creates monetary rewards for any member of the public who successfully sues an abortion provider or those who “aid and abet” someone getting an abortion after six weeks of pregnancy.

That monetary reward can reach as high as $10,000.

Defendants in the lawsuit include every state court trial judge and county clerk in Texas, the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, the attorney general, and the director of Right to Life East Texas, who has already openly called for people to sue their local abortion providers under SB 8.

According to a press release issued with the lawsuit, the ACLU says many people do not realize they are pregnant until after six weeks. 

Approximately 85-90% of people who obtain abortions in Texas are at least six weeks into pregnancy, meaning this law would prohibit nearly all abortions in the state. 

Abortion is already extremely difficult to access in Texas, where patients face countless hurdles, including a law that forces them to receive in-person, biased counseling and then wait at least 24 hours before obtaining an abortion, and a ban on telemedicine for abortion, the ACLU says.

SB 8 effectively makes abortion care only available to people who can afford to travel out of state. That means people living on a low income and people of color will be harmed the most by this ban. In Texas, the poverty rate for Black and Latinx women is disproportionately high — 19% of Black women and 20% of Latinx women live in poverty.

While six-week bans have been blocked in eight other states, SB 8 is specifically designed to be difficult to block before it takes effect. Similar bans in other states are all explicitly enforced by government officials, allowing plaintiffs to directly sue the state officials responsible for enforcing the law. Texas has instead created an enforcement scheme of private lawsuits brought by the general public in an attempt to evade all legal accountability and prevent the federal courts from blocking this unconstitutional ban before it takes effect.

The case was filed in the U.S. District Court for the Western District of Texas.

Rupali Sharma, senior counsel and director at the Lawyering Project, said Texas’s new abortion prohibitions “Isolates pregnant Texans from their communities and networks, robbing them of critical support and access to abortion care. 

“It was specifically designed to dodge constitutional review and encourages frivolous — yet damaging — lawsuits against anyone who assists Texans in accessing constitutionally protected abortions after six weeks of pregnancy. We are proud to represent half a dozen abortion funds as they stand up for the clients they serve, demanding Texans be treated with the dignity and respect they deserve,” he said.

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