Pro-abortion groups have a new strategy when it comes to attacking the Texas Heartbeat Act: sue pro-life groups and individuals who are seeking to enforce the law.
The Texas Equal Access (TEA) Fund and the Lilith Fund have filed a lawsuit against the Thomas More Society after the Chicago-based law firm filed pre-suit discovery against the abortion funds after they admitted to aiding or abetting in the abortion of at least one child, as Live Action has reported. Later when the Lilith Fund tweeted a fundraising scheme intended to subvert the Texas abortion ban, the Thomas More Society replied that donors could be sued under the Texas Heartbeat Act.
— @ThomasMoreSoc (@ThomasMoreSoc) February 22, 2022
“It is illegal to pay for an abortion performed in Texas or to contribute to abortion funds to aid or abet these abortions,” said Tom Brejcha, President and Chief Counsel of the Thomas More Society, in a press release. “The Lilith Fund and the Texas Equal Access Fund have admitted to paying for abortions in violation of the Texas Heartbeat Act, and in doing so they have exposed their employees, volunteers, and donors to civil lawsuits and potential criminal prosecution.”
The abortion funds’ preemptive lawsuit against the Thomas More Society and the America First Legal Foundation, both of whom have sought to enforce the Texas Heartbeat Act, is yet another approach by abortion activists who continue to seek ways to challenge the law. Under the law, individuals or groups who aid or abet an abortion committed after a heartbeat is detected are liable to a $10,000 civil penalty, plus attorney’s fees and costs, if successfully sued by a private individual or entity. When the Thomas More Society filed pre-suit petitions for discovery in anticipation of potentially suing the pro-abortion Lilith Fund, they identified themselves as potential citizen enforcers of the heartbeat law. TEA and Lilith Fund filed suit to prevent the pro-life group’s civil lawsuit under the Texas Heartbeat Act’s provisions.
Texas’ Heartbeat Act has been difficult to challenge in court due to the unique way the law is enforced. According to the law, the only people able to actually enforce it are regular citizens and private entities, whereas typically the government of a state is the enforcer of the state law. According to the Texas Tribune, TEA and Lilith Fund are not contesting the constitutionality of the Heartbeat Act’s abortion restrictions, but rather aspects of the law that they argue violate the groups’ rights to due process, free speech, and equal protection.
The abortion funds are seeking to avoid what they view as mistakes of previous legal challenges, and they also filed the suits in Chicago and Washington, D.C., specifically to avoid the conservative Fifth Circuit Court of Appeals in Texas that has upheld the Texas Heartbeat Act in recent rulings, the Tribune reports.
A ruling on behalf of the abortion funds – which could be appealed – would prevent the Thomas More Society and America First Legal Foundation, defendants in the case, from enforcing the law, but this would not necessarily apply to other groups or individuals. Abortion activists hope that such a ruling will make it easier to defend against future challenges.
According to Professor Steve Vladeck of the University of Texas School of Law, the funds are “building the defensive position” and seeking “to obtain a judgment that won’t be completely effective, but will make it easier to defend the lawsuits they will still face,” The Washington Post reported.
In March, the Texas Supreme Court effectively ended a lawsuit by abortion business Whole Woman’s Health against the Texas Heartbeat Act. The lawsuit named state officials as defendants and sought an injunction on those officials from enforcing its provisions; yet as Live Action News reported, the court ruled that state officials play no role in enforcing the law and affirmed that the law is enforced only by private civil action.
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