Origin story behind new law
Small town birthplace of Texas’ abortion ruling
The road to a Texas law that bans most abortions in the state, sidestepping for now the Supreme Court’s landmark 1973 Roe v. Wade decision, began in a town called Waskom, population 1600.
The Supreme Court’s decision last week not to interfere with the state’s strict abortion law provoked outrage from liberals and cheers from many conservatives. President Joe Biden assailed it. But the decision also astonished many that Texas could essentially outmanoeuvre Supreme Court precedent on women’s constitutional right to abortion.
Texas’ abortion law S.B. 8 follows a model first used in Waskom to ban abortion within its boundaries in 2019. The novel legal approach used by the city on Texas’ border with Louisiana is one envisioned by a former top lawyer for the state.
Right to Life East Texas director Mark Lee Dickson, 36, a Southern Baptist minister, championed Waskom’s abortion ban. Through his state senator, Bryan Hughes, he met Jonathan F. Mitchell, a former top lawyer for the state of Texas. Mitchell became his attorney and advised him on crafting the ordinance, Dickson said in an interview.
The ordinance shields Waskom from lawsuits by saying city officials can’t enforce the abortion ban. Instead, private citizens can sue anyone who performs an abortion in the city or assists someone in obtaining one. The law was largely symbolic, however, because the city did not have a clinic performing abortions.
Nearly three dozen other cities in the state followed Waskom’s lead. Among them is Lubbock, where a Planned Parenthood clinic stopped performing abortions this year as a result.
Mitchell has declined interviews, but Dickson called him a “brilliant guy” and said he was “extremely grateful” for his help. Hughes, who later became the author of the Texas law, echoed those sentiments. The two have known each other for years.
Though Hughes would not assign credit for Texas’ approach to a single person, saying many lawyers and law professors advised on the legislation, ultimately S.B. 8 followed the Waskom model in terms of how the law is enforced.
The law, signed by Republican Governor Greg Abbott in May, prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks and before many women know they’re pregnant. At least 12 other states have enacted bans early in pregnancy, but all have been blocked from going into effect.
Unlike laws in other states, however, Texas’ law is unique in prohibiting state officials from enforcing the ban. Instead, it created a socalled private right of action allowing anyone — even someone outside Texas — to sue abortion providers and anyone else who helps someone get an abortion.
The private right-of-action wrinkle envisioned by Mitchell has so far kept challenges to the law from succeeding.
A law review article Mitchell wrote that was published in 2018 gave guidance to lawmakers worried about courts blocking their laws. He said lawmakers could protect their legislation by including a private right of action. He said the strategy could apply to a wide range of laws.
“It is practically impossible to bring a pre-enforcement challenge to statutes that establish private rights of action, because the litigants who will enforce the statute are hard to identify until they actually bring suit,” he wrote in one footnote.
In the case of Texas’ law, things have played out as he predicted.
Still, even some conservatives have questioned Texas’ approach. Dissenting from the high court’s decision not to step in this past week, Chief Justice John Roberts called Texas’ law “not only unusual, but unprecedented.”
“The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large,” he wrote.