Twenty years ago, the Fifth Circuit Court of Appeals took up a case over a Louisiana abortion law that might sound familiar: it empowered citizens to sue abortion providers.
Opponents called the law a back-door attempt to cut off access to the procedure, despite judicial precedent, and they sued state officials to block it. But the court ultimately dismissed the claim, saying it couldn’t weigh in on the privately-enforced statute, at least not preemptively.
As Texas now rolls out its unprecedented six-week abortion ban, decimating access to millions of people of reproductive age, the 2001 decision in Okpalobi v. Foster is not just a historical landmark. It directly influenced the new law.
“We had missed it,” said Republican state Sen. Bryan Hughes, who authored the Texas law, Senate Bill 8. “But about 20 years ago the Louisiana legislature employed citizen enforcement in this area on a much smaller scale. The full Fifth Circuit Court of Appeals said that works.”
He added, “I’m embarrassed it took us 20 years to put this together.”
The Texas law, which took effect last week after the Fifth Circuit and the U.S. Supreme Court declined to intervene, has shocked many who were unaware that a state could essentially bypass decades of court rulings protecting abortion access.
But while the statute is pioneering in its scope, allowing nearly anyone to sue providers and others who defy the ban, its legal framework has existed for decades, essentially hiding in plain sight.
The new law arrived just as the judicial and political winds were aligning for the antiabortion movement, including Justice Amy Coney Barrett’s rise to the high court last fall, which cemented its conservative majority.
“There are folks who have been waiting to pull out this Rube Goldberg-like procedural trap for a time when the Supreme Court might let them get away with it,” Steve Vladeck, a law professor at the University of Texas at Austin, said of the Louisiana approach. “And that wasn’t 20 years ago, and it wasn’t 10 years ago, and it wasn’t even four years ago.”
At the center of the new law was Jonathan Mitchell, a former Texas solicitor general who has pushed the private-enforcement model as a way to shield laws on abortion and other issues from judicial review.
“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,” Mitchell wrote in a law review article in 2018.
The next year, he helped the tiny East Texas city of Waskom enact an abortion ban much like SB 8, using private enforcement. Nearly three dozen other cities in the state followed suit, though the laws were mostly symbolic because there were no local abortion providers.
Lubbock was the first to successfully stop an abortion clinic from operating this spring when voters there passed an ordinance that Mitchell has offered to helped defend.
Mitchell did not respond to an interview request, but Hughes, who represents Waskom and said he has known Mitchell for years, called his work critical to getting the Texas ban off the ground. Hughes said he became aware of the 2001 Louisiana case through Mitchell’s article, which cited it in a footnote.
‘Privatizing’ an abortion ban
Hughes worked closely with Mitchell to craft SB 8 and then pitch it to colleagues late last year, where it met initial skepticism. Texas Right to Life, an antiabortion lobbying group, had pushed for civil penalties in previous abortion laws, but never as the sole form of enforcement, and its political director John Seago was not optimistic that a six-week ban could survive in both legislative chambers.
At the time, Seago was struggling to get support for even less ambitious restrictions, specifically a ban on abortions done because of genetic anomalies detected in fetuses.
“We had many Republicans tell us that was still too stout,” he said in an interview last September, shortly after Barrett’s nomination was announced. “And it was nothing close to a Heartbeat bill, it wasn’t an 8-week ban, it wasn’t a full-out abortion ban.”
Seago said he got on board after four Democratic district attorneys in Texas signed on to a letter last October vowing not to enforce criminal penalties if the Supreme Court rolls back or overturns Roe v. Wade, the 1973 decision that established women’s constitutional right to abortion. If the movement couldn’t rely on public officials to carry out the law, he said, it would have to find another way.
Other factors were also lining up. Texas Republicans far outperformed expectations in the November statewide elections, emboldening conservative factions who have long called for stiffer abortion laws. And six of the Fifth Circuit’s 17 active judges were appointed by former President Donald Trump, a Republican who had campaigned on overturning Roe. Only five members of the court were picked by Democrats.
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“There was an air, especially in the grassroots, of there are no excuses not to be bold when it comes to this issue,” Seago said.
Some Republicans were turned off by the enforcement approach, saying it was either too weak or opened the door to more frivolous lawsuits, a trend that many in the party have been fighting for years to squash. Another antiabortion group testified against the bill, warning lawmakers it would not hold up in court and could set the movement back in Texas.
“We had to go in and explain that this is actually the best way you enforce a pro-life bill, this is how these suits would come, this would actually hold the abortion industry accountable,” Seago said.
The Fifth Circuit’s 2001 decision was a sign that SB 8 might be able to survive where other six-week bans, known among antiabortion activists as heartbeat laws, have so far failed.
“This was exactly my fear, that this would be a new strategy,” said Maya Manian, a visiting professor at the American University Washington College of Law who compared the Louisiana law to a “Sword of Damocles” in a 2007 law review article she wrote on the ruling.
“The threat of a catastrophic lawsuit alone will chill abortion providers,” she wrote in the piece, titled ‘Privatizing Bans on Abortion: Eviscerating Constitutional Rights through Tort Remedies.’
The Louisiana law, passed in 1997, allows patients to sue their abortion providers for damages to themselves or their aborted fetus for up to 10 years, even if they signed consent forms informing them of the risks. It also bars abortion providers from accessing a state-run fund used to help doctors pay down medical malpractice judgments.
The statute was challenged again years later, after the first private lawsuits were brought against providers, and upheld in 2013 by a panel of three Republican-appointed judges at the Fifth Circuit. The law is one of many that the state Legislature has passed restricting abortion access; it specifically makes it difficult for abortion providers to get malpractice insurance, an outcome that Texas providers have feared with SB 8. Today there are just three abortion clinics in Louisiana, compared to well over a dozen in the early nineties.
Mary Ziegler, a professor at Florida State University who has studied the antiabortion movement, said the Louisiana law was part of a different era, when activists were more outwardly focused on protecting the health of pregnant people. Since then, antiabortion groups have pushed for laws that can chip away at or directly challenge Roe, rather than create legal loopholes around it.
“It seemed pretty clear that there was a strategy that most abortion opponents were using, and this was not the strategy,” Ziegler said. “People weren’t paying attention to it because they didn’t feel that they had to.”
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