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Gov. Greg Abbott signs into law one of nation’s strictest abortion measures, banning procedure as early as six weeks into a pregnancy
Gov. Greg Abbott signed into a law Wednesday a measure that would prohibit in Texas abortions as early as six weeks — before some women know they are pregnant — and open the door for almost any private citizen to sue abortion providers and others.
The signing of the bill opens a new frontier in the battle over abortion restrictions as first-of-its-kind legal provisions — intended to make the law harder to block — are poised to be tested in the courts.
Abortion rights advocates have promised to challenge the new law, which they consider one of the most extreme across the country and the strictest in Texas since the landmark Roe v. Wade decision.
The law takes effect in September.
The Legislature "worked together on a bipartisan basis to pass a bill that I'm about to sign that ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion," Abbott said, in a livestream posted on Facebook.
The governor's signature comes just after the U.S. Supreme Court said it would hear a case concerning a Mississippi law that would ban most abortions after 15 weeks, and which could lead to new limits on abortion rights. It is the first major abortion case heard before the court's newly expanded conservative majority, and could have far-reaching effects for Texas, where a pending bill would outlaw nearly all abortions if the Supreme Court overruled Roe v. Wade.
Senate Bill 8 was a top priority for Republican lawmakers, nearly all of whom signed on as an author or sponsor of the measure.
The bill bans abortions after a fetal heartbeat has been detected. It includes cases where the woman was impregnated as a result of rape or incest. There is an exception for medical emergencies.
Similar "heartbeat" bills have been passed by other states and held up by the courts, but Texas' version has a twist.
Instead of having the government enforce the law, the bill turns the reins over to private citizens — who are newly empowered to sue abortion providers or anyone who helps someone get an abortion after a fetal heartbeat has been detected. The person would not have to be connected to someone who had an abortion or to a provider to sue.
Proponents of the new law hope to get around the legal challenges that have tied up abortion restrictions in the courts for years. While abortion providers typically sue the state to stop a restrictive abortion law from taking effect, there's no state official enforcing Senate Bill 8 — so there's no one to sue, the bill's proponents say.
"It's a very unique law and it's a very clever law," said Josh Blackman, a constitutional law professor at South Texas College of Law Houston. "Planned Parenthood can't go to court and sue Attorney General [Ken] Paxton like they usually would because he has no role in enforcing the statute. They have to basically sit and wait to be sued."
Legal experts have been divided on the strategy, and abortion rights advocates have said they plan to fight regardless.
Elisabeth Smith, chief counsel at the Center for Reproductive Rights, which has represented abortion providers who have sued Texas, said it and other abortion rights organizations are "not going to let this six-week ban go unchallenged."
Drucilla Tigner, policy and advocacy strategist of the American Civil Liberties Union of Texas, said the "governor's swipe of a pen can't change the Constitution."
While the law is most extreme abortion ban in the country, "abortion is both legal in Texas and supported by the majority of Texans," Tigner said.
Abortion rights advocates and lawyers say the new law would allow for a cascade of lawsuits against abortion providers, that would sap their time and money even if they ultimately won in court.
Family members, abortion funds, rape crisis counselors and other medical professionals could be open to lawsuits, under the broad language in the bill, according to legal experts and physicians who opposed the measure. People who sued would be awarded at least $10,000, as well as costs for attorney's fees, if they won.
"Every citizen is now a private attorney general," Blackman said. "You can have random people who are against abortion start suing tomorrow."
John Seago, with Texas Right to Life, an anti-abortion organization that supported the bill, said
he doubted there would be an "overwhelming number of cases on day one."
Lawsuits might be filed by anti-abortion activists who learned through talking to the woman that she got an abortion after six weeks.
"There's going to be a lot of different [fact] patterns that could lead to the case," he said. But the bill isn't "throwing out the typical way that the judicial system works — there's still going to be a judge, there's still going to be depositions, there's going to be a high bar" before fees are awarded.
The ultimate goal, he said, is to incentivize abortion providers to comply with the law instead of fighting it in court.
They can "easily avoid all of that," Seago said. "Have a public statement. Put it on their website that they're not scheduling appointments after six weeks."
The bill does not allow rapists to sue but abortion rights advocates say the wording offers flimsy protection as most rapes and sexual assaults aren't reported and don't result in a conviction.
Most abortions in Texas were already prohibited after about 20 weeks. Pill-induced abortions were barred at 10 weeks. The abortion provider must perform a sonogram on the woman 24 hours before the abortion and give them information about medical risks, abortion alternatives and assistance available to those who follow through with their pregnancy.
More than 56,600 abortions were performed on Texas residents in 2019, according to state statistics, most of them in the first trimester.
Proponents of the law celebrated its signing.
"The Legislature and Governor prioritized this historic legislation, and with his signature, approximately 50,000 precious human lives will be saved in Texas next year alone!" said Chelsey Youman, with Human Coalition Action, an anti-abortion organization.
Austin Mayor Steve Adler acknowledges that Gov. Greg Abbott trumps the city of Austin when it comes to whether construction workers will continue to work. They will stay on the job--but with the city guiding work behavior.
"We'll continue to enforce the non-conflicting parts of the city order to mitigate the risk for workers, their families, and the city at large," the mayor said in a written statement Thursday.
What this means is that construction men and women will still be on the job in Austin, but the city will make an effort to educate workers and job site managers. The city will enforce safety requirements such as social distancing, and see that recommended hygiene practices are being observed.
On March 31, the governor issued his own order implementing statewide protocols, which followed the definition of "essential services" provided by the U.S. Department of Homeland Security. This came a week after the city of Austin's March 24 stay-at-home order restricting nonessential construction in an effort to contain the spread of the coronavirus.
In conceding to the state, the city has said that all construction will be allowed to continue despite the pandemic.
In mid-March, the governor said he was confident cities would make the best decisions for their communities, a sharp diversion from his past positions against local control, including his recent criticism of Austin leaders' homelessness policies. But his March 31 order, which instructs Texans to stay home except for essential work and services, moves toward a more centralized state response to the pandemic.
Before the governor's announcement, Austin's construction industry was lobbying city leaders to reconsider the local order. Unlike those in other big cities in Texas—including Houston, Dallas and San Antonio—Austin's order did not consider construction "essential," with exceptions for projects related to public works, affordable housing, social services, government functions and critical infrastructure.
In a joint letter sent on March 25—the day after the city's order was announced—representatives from the Austin Apartment Association, Austin Board of Realtors, Austin Chamber of Commerce, Home Builders Association of Greater Austin and the Real Estate Council of Austin, among others, urged Adler and County Judge Sarah Eckhardt to "Keep Austin Building," arguing that job sites allow for social distancing and other safety measures.
Silvia Pendleton, executive director of the Austin Contractors and Engineers Association, was one of the letter's signatories.
No ACEA members have laid off workers yet, she said, but many were concerned about compliance.
Ana Gonzalez is the director of the policy and Better Builder programs at the Workers Defense Project, a progressive advocacy group that represents low-income workers, many of whom are immigrants and work in construction.
Because all construction work is allowed under the governor's order, Gonzalez said the organization's priority is to ensure job sites are safe and the city's safety requirements are maintained."[Construction workers] need to go to work because they live paycheck by paycheck," Gonzalez added. "And they don't have the ability to work from home. They don't have a safety net to fall on."
This article has been updated to clarify the position of the Workers Defense Project.
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