The far-reaching impact of a ‘private right of action’ to stop the killing of preborn humans

Disclaimer: Opinions expressed in this guest post are solely those of the guest author.  

The gutsy little town of Waskom (pop. 2,190) in far East Texas decided on June 11, 2019, to pass a local ordinance prohibiting abortion within its city limits. This ‘Sanctuary City for the Unborn’ (SCFTU) ordinance, as it was dubbed, was crafted by Mark Lee Dickson, a director with Right to Life of East Texas; Senator Bryan Hughes (SD-1), whose Senate District includes Waskom; and Attorney Jonathan Mitchell, the former Solicitor General of the State of Texas.

This innovative ordinance actually prohibited city officials and local police from enforcing the new law, thereby shielding the City of Waskom from lawsuits. Instead, enforcement was left to private citizens who could sue anyone who performed an abortion or assisted someone in obtaining an abortion within the city limits. The ordinance was written this way so that abortion providers would not have standing to sue the city or its agents in federal court.

Was this method of enforcement by citizens’ “private right of action” effective? The answer is unequivocally “Yes.”

As University of California Davis School of Law professor Mary Ziegler explained in her book, “Roe: The History of a National Obsession,” published by Yale University Press:

Generally, federal standing doctrine required not only that someone suffer a real injury at the hands of the defendant but also that a favorable judicial decision could provide some form of redress. When it came to redress, Mitchell and Hughes relied on a 2001 case called Okpalobi v. Foster.

Ziegler continued:

In 1999, Louisiana had passed a law allowing women to sue abortion providers for injuries to their unborn children. When abortion providers challenged the constitutionality of the law, the Fifth Circuit Court of Appeals concluded that they lacked standing to sue the state because the government and its agents could neither stop private citizens from suing nor block state courts from entertaining suits.

Hughes and Mitchell thought the same argument could apply to Waskom: because the sanctuary city ordinance assigned enforcement to private citizens, the city would have no authority to stop private citizens from suing, and courts would hold that any abortion provider hauling the city into court lacked standing to do so.

‘Actually a very clever ordinance’

Waskom was the first, but not the last, city to pass such an ordinance. Soon dozens of cities had passed ordinances outlawing abortion within their city limits. The greatest challenge the movement would face, however, was Lubbock (pop. 264,000) on the high plains of West Texas, where Planned Parenthood had opened a clinic and was actively performing abortions. After Lubbock’s City Council rejected the measure, dedicated residents used the Citizen Initiative Petition provision in their City Charter to force the issue to a citywide vote. The measure passed 62% to 38% on May 1, 2021 – making Lubbock the largest Sanctuary City for the Unborn in the State of Texas. 

Josh Blackman, a law professor at South Texas College of Law Houston, told The Texan that the crafting of Lubbock’s text had “complicated pro-choice retaliation that would otherwise be cut-and-dry.” 

Professor Blackman stated:

It’s actually a very clever ordinance, the way they’ve devised it. Usually, the way laws work is the government enforces it. So let’s say the city or county puts a restriction on abortion…. With the usual law, when the government enforces it, Planned Parenthood can bring what’s called a pre-enforcement challenge. It says, “Well, this law hasn’t been enforced yet, but they will enforce it, and when they do enforce it, we’ll have our rights violated. So we can sue now.” 

This ordinance is different. It specifically says government, the Lubbock government, cannot enforce this law. Cannot. The only people who can enforce this law are private citizens…

Why is this fact important? It’s almost impossible to do a pre-enforcement challenge when the government’s not enforcing it. In other words, they can sue the government — which they probably will try to — and the court will say, ‘Well, that’s nice, but the government can’t enforce this law, so what are you suing them for?’

There’s no way for a court to hear the validity of this law until someone actually brings a civil lawsuit.

As Blackman predicted, Planned Parenthood sued the City of Lubbock on May 17, 2021 – but their lawsuit was short lived. On June 1, 2021, the date the ordinance went into effect, Planned Parenthood complied with the new law and stopped committing abortions in the city. That same day, Judge James Wesley Hendrix issued a 50-page ruling siding with the City of Lubbock. This victory marked the first time in history for a pre-viability abortion ban to pass, go into effect, and survive a court challenge under Roe v. Wade. 

Writing about the outcome of the case, Ziegler wrote:

District judge James Wesley Hendrix, whom Donald Trump had nominated in 2019, agreed with Lubbock that federal courts had no jurisdiction to hear the case because abortion providers lacked standing to sue. “Like the defendants in Okpalobi,” Judge Hendrix wrote, “the city and its officials have no authority to prevent a private plaintiff from invoking the ordinance or to tell the state courts what cases they may hear.”

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Paving the way for the Texas Heartbeat Act

The local ordinances paved the way for the Texas Heartbeat Act, which later used the same enforcement mechanism but only allowed lawsuits to be filed against those who performed abortions or aided or abetted abortions on unborn children with detectable heartbeats.

Before the law went into effect on September 1, 2021, the abortion industry sued everyone they could think of suing to stop the law from going into effect – including SCFTU’s Mark Lee Dickson. Despite their best efforts, which included an emergency appeal to the U.S. Supreme Court, the abortion industry was unsuccessful. The Texas Heartbeat Act became the first statewide pre-viability abortion ban in the nation to go into effect under Roe v. Wade. While the abortion industry’s challenge to Texas’ Heartbeat Act continued, the enforcement remained in effect. 

On September 12, 2021, the Wall Street Journal published an Op-Ed by Senator Bryan Hughes titled, “The Texas Abortion Law Is Unconventional Because It Had to Be.” Hughes wrote the opinion piece because, he said, as the author of the Texas Heartbeat Act, he felt “compelled to explain its provisions and defend its logic.” 

In describing how the law is enforced, Hughes wrote, “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.”

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In explaining why the law is enforced using a private right of action, Hughes wrote (emphasis added):

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.

Hughes continued, explaining:

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.

Hughes concluded, “In contexts other than abortion, citizens often sue to enforce laws that are otherwise difficult for the government to enforce through traditional channels.”

Thousands of lives saved

The abortion industry’s suit against Texas’ Heartbeat Act worked its way to the U.S. Supreme Court, surviving a challenge at the highest legal venue in the land. Texas’ case paved the way for victory in Mississippi’s Dobbs v. Jackson Women’s Health Organization and the end of Roe v. Wade on June 24, 2022. This was a massive triumph for the Texas Legislature and for state and national pro-life movements. 

The Heritage Foundation reported on July 19, 2023, that “a new study published in the Journal of the American Medical Association quantifies just how many lives the Texas Heartbeat Act has protected from abortion. According to the study, an estimated 9,799 more babies were born in Texas between April and December of 2022 as a result of the Texas Heartbeat Act.”

Recognizing the value of this “private right of action” and that this mechanism is saving lives, the Republican Party of Texas in 2022 added it to their platform. It was retained as plank No.194(j) in the Republican Party of Texas 2024 Party Platform, stating:

Abortion is not healthcare, it is homicide. Until the abolition of abortion is achieved, we support laws that restrict and regulate abortion, including but not limited to . . . Extending the private cause of action used in the Texas Heartbeat Act to all pro-life laws and policies in Texas.

Additionally, Plank No.53 of the Republican Party of Texas 2024 Party Platform states:

We support legislation to prohibit the use of any government funds, as well as the transportation of pregnant women across Texas’ state lines, for the purpose of procuring an elective abortion and for the provision of a private right of action against all persons and organizations who aid and abet in the harming of the woman, and the killing of her preborn child.

Today, in legislation being considered throughout Texas and the United States, lawmakers are remembering these Texas victories and entertaining the use of a “Private Right of Action” in their pro-life laws. 

Bio: Ruth York, a homeschooling mom of eight, is blessed to live on the farm where she grew up. Always an advocate for life, she engaged politically on seeing the leftward trajectory of our nation in recent years. She now serves as vice president of Tea Party Patriots of Eastland County.