BU Today: What is so unusual about this law?

Nicole Huberfeld: Texas enacted a law that is part of the trend of more conservative state legislatures enacting what are often called fetal heartbeat laws. The idea is that if a heartbeat can be detected, then an abortion wouldn’t be permitted in the state. It ranges in different states. Mississippi has a fetal heartbeat law going before the Supreme Court this coming term [Dobbs] and their prohibition begins at 15 weeks. So Texas is unusual for a couple of reasons. Its prohibition begins six weeks after the last menstrual cycle, and that is a time when most women would not even know that they are pregnant. It’s also important to understand, from a scientific perspective, that there is no heart at that time, it’s just an electrical pulse. So these fetal heartbeat laws restrict abortion pre-viability, which is contrary to the precedents of Roe v. Wade and Casey [Casey v. Planned Parenthood, 1992].

The Texas law is also unusual because it has no exceptions for rape or incest or to protect the life or health of the pregnant woman, and those are features that have been required by the Supreme Court, historically. In addition, the state itself will not enforce the law. Rather what it does, effectively, is establish a whistleblower scheme, so that private citizens, who need not be residents of Texas, are supposed to bring civil lawsuits against anyone who participates in an abortion. Not the patient, but anybody else. A physician, a nurse, assistant, Uber driver, you name it! Anyone who might have participated in paying for or facilitating the abortion. Some people have used the word deputizing to describe this enforcement scheme. I think it’s more of a whistleblower scheme. We have [in this law] a call to whistleblowers, people who are uninvolved in the activities, to be eyes on the ground for the state and take responsibility for enforcing the law, where the state is not.

BU Today: The word vigilante has been used to describe this feature of the law, although the weapon they are using is a lawsuit. It seems there is considerable potential for problems.

Nicole Huberfeld: Those are the concerns. Historically, whistleblower statutes operate on the theory of, it takes a thief to catch a thief. If someone who is involved in misbehavior can bring that misbehavior to the attention of the government, everybody wins. If we take the Texas law on its face—setting aside that it completely disregards 50 years of Supreme Court precedent and is on its face unconstitutional—let’s say you have a clinic and a physician in a case where there are fetal abnormalities that will be fatal and rather than force that woman to naturally miscarry, the doctor is willing to perform an abortion for the health of the woman. A nurse involved in that effectively fits that whistleblower framework and can bring that to the attention of the government. 

Here the executive branch has completely removed itself from enforcement and is leaving it entirely to private citizens and the judiciary. This may be a unique scheme, but I’m not certain about that. I’m not familiar with another law structured in that way. I think that’s why people are using the vigilante analogy. What they’re drawing on is that, historically, there have been people with very extreme pro-life views that have been willing to do things like shoot abortion doctors and seal themselves in cars to block access to clinics. Their assumption is that those are the same people who will become active in the private enforcement of this law.

But what I see is that it actually has the potential to create a culture of distrust in reproductive care. It makes it so that people providing reproductive care will be uncertain whether they can do what’s best for a patient without having someone looking over their shoulder and bringing a lawsuit, with, by the way, the promise of a $10,000 reward for bringing that lawsuit. Really, what it is, is an attempt to work around the historic litigation that arises and is quite costly to states when they attempt to challenge precedent in this way.

BU Today: The Supreme Court’s majority essentially said that they weren’t going to intervene now on a procedural basis. This doesn’t prevent challenges to the law once it’s enforced, does it?

Nicole Huberfeld: The [majority] basically said that ‘we don’t feel the process has played out appropriately so we are not going to issue a preliminary injunction to stop the state from allowing this law to go into effect.’ The door is still open to further litigation. And in fact, further litigation is proceeding in lower federal courts. But in Griswold v. Connecticut [a key abortion-rights case in the 1960s], those doctors had to go and violate Connecticut law and be prosecuted in order for the Supreme Court to hear the case. So the question is, is it right? Is it fair? Is it ethical? Is it constitutional to make it so that these doctors have to go ahead and violate Texas law to be heard by the Supreme Court?

BU Today: Are other red states likely to enact similar laws to limit abortion, or on other issues, like gun control?

Nicole Huberfeld: I think what we’ll see is, as this litigation proceeds, other states will chime in and say, we want to do that too, and weigh in with amicus briefs. I think, though, because the Texas law is unusual in its private enforcement aspect, other states may wait and see how that plays out. Because I think there’s a serious question as to whether a state can completely abdicate its responsibility to enforce its own laws.

A number of states have been enacting laws that limit the rights of trans individuals, especially trans youth, to access certain kinds of medical care. And I could imagine this spilling over into that new set of ‘social laws’—these laws that regulate intimate relationships and intimate medical decision-making.

BU Today: Chief Justice John Roberts, a conservative, sided with the dissenters, but wrote his own brief dissent. What does that tell us about upcoming abortion cases before the court?

Nicole Huberfeld: What I see there is not that Chief Justice Roberts supports pro-choice positions, but rather that the chief justice is concerned with the legacy and reptuation of the court, and he doesn’t like precedent to be challenged in the way that it is challenged here. He thinks that that appears to destabilize the legitimacy of the judiciary, and he clearly doesn’t like these cases that are clearly designed to keep testing the waters. The chief justice wants precedent to be meaningful. He’s not making any statement on the constitutionality of the law. He’s saying the process is flawed. I don’t think we should think for a moment that the chief justice is an advocate for Roe v. Wade and Casey.

BU Today: What will be the fallout from the court’s decision not to intervene?

Nicole Huberfeld: I think what we’ll see is that this decision is cause for celebration for people who are pro-life. They’re going to read the tea leaves to indicate the Supreme Court is going to rule a particular way on Dobbs. And I think this will be cause for dismay for people who consider themselves pro-choice. Because Texas clinics are going to shut down. 

The thing that often gets lost in these discussions is the real-world implications, especially for already vulnerable populations. Frankly, it is poor women who will suffer the most from these kinds of decisions. People of means, women of means, have always been able to get the medical care that they need. It is poor women who will suffer the most from this decision.

Years ago the Supreme Court decided that states couldn’t force their citizens to seek their constitutional rights in another state. That was decided in the context of desegregating education. Texas is basically saying, if you want an abortion you have to leave the state. But as it stands, abortion is legal, and it is a constitutionally protected medical procedure, because the right to privacy is still the law of the land. And Texas is basically testing the law of the land on the backs of low-income, underprivileged women.