The novel feature of Texas Senate Bill 8, known as the Texas Heartbeat Act, is its provisions that deputize millions of Texans to serve as enforcers of the law that bans abortion after a fetal heartbeat is detected, may also be its undoing under a unique provision of the Texas Constitution of 1876. The “open courts” clause of the state constitution guarantees Texas citizens the right of meaningful access to the state’s courts.
The open courts clause has no counterpart in the U.S. Constitution, so it has not yet been interpreted in the many federal-court challenges to the law. But the virtual shutdown of Texas abortion providers since the enactment of the act suggests that the clause may directly address the practical problems that the act has created.
The Texas Heartbeat Act took effect Sept. 1 after the federal courts rejected initial challenges to it. Roughly a month later, a federal court in Austin enjoined the act, but that ruling has been appealed to the U.S. Court of Appeals for the Fifth Circuit — the same federal appellate court that rejected the previous challenge.
The innovative feature of the statute, and the main reason the federal courts did not intervene before its enactment, is that it does not appoint any particular government official to enforce the law. The law essentially deputizes the entire state, allowing virtually anyone to bring a lawsuit and personally collect a $10,000 award, plus legal fees.
This feature of the act, widely criticized as encouraging vigilantism, is a novel way to apply this sort of restriction to an abortion provider — or, with only minor revision — to the exercise of any constitutional right.
In response, Texas abortion providers have essentially shut down. They say the costs and risks of widespread litigation under this law have made it cost-prohibitive to provide abortion services.
That problem directly implicates the open courts clause of the Texas Constitution, the current version of which was adopted in 1876. Part of the Bill of Rights in Article 1 of the state constitution, the clause says: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”
When the Texas Constitution was enacted, there was great public discontent with perceived corruption in the national government of the time. And just having emerged from Reconstruction, Southern states were skeptical about centralized power and eager to avoid it where they could. The result, in Texas, was a document with significant constraints on state power. For example, the Legislature only sits every other year unless there is a special session.
The open courts clause is part of the state constitution’s structural protection of individual rights against the power of a centralized state government.
Texas courts interpret this provision to include at least three separate guarantees: first, that courts must actually be open and operating; second, that the Legislature cannot impede access to the courts through unreasonable financial barriers; and third, that the Legislature may not abrogate well-established common law causes of action, unless the reason for its action outweighs the litigants’ constitutional right of redress.
The situation created by SB 8 directly implicates the second factor. Historically, this principle has been seen as a barrier to excessive administrative charges for filing new lawsuits and obtaining other services from clerical officials. But the novel procedural feature of the Heartbeat Act also presents a very real financial burden to an abortion provider’s ability to obtain a ruling about the constitutionality of the act through traditional legal channels.
The virtual shutdown of abortion providers in Texas, now in its second month , powerfully illustrates this point. Waiting until the entry of final judgment in a Heartbeat Act case is simply not realistic, and has the practical effect of denying providers their right to access the courts to defend the constitutionality of the services they provide.
The question whether the open courts clause of the Texas Constitution makes SB 8 invalid raises a novel issue about the operation of that clause. Of course, the drafters of the 1876 Constitution were not thinking about abortion rights when they wrote this provision. But if something like the Heartbeat Act had been suggested at the time, and applied to other, constitutionally protected activity such as gun ownership, it seems likely that the framers would have considered such a law as a challenge to the openness of Texas courts.
The law poses a basic question about our state government as defined in our state constitution. It deserves careful scrutiny as courts continue to examine the Heartbeat Act.
David Coale leads the appellate practice for the Dallas-based law firm Lynn Pinker Hurst and Schwegmann. He wrote this column for The Dallas Morning News.