A New Strategy in the Legal Fight to Protect the Unborn Proves Successful

April 29, 2022

As the pro-life movement awaits the U.S. Supreme Court's pivotal Dobbs decision that could overturn Roe v. Wade in the coming months, a heartening new legal strategy has emerged after a recent federal court victory in Texas that could prove to be a blueprint for other states to follow in order to protect unborn children.

Texas has become the epicenter of pro-life legislation in America ever since the state passed its historic Heartbeat Act last May, the first of its kind in the nation. The law "empowers private citizens to sue anyone suspected of aiding or abetting an abortion after fetal cardiac activity is detected, usually after six weeks of pregnancy." Since the law was enacted almost a year ago, abortions in Texas have dropped dramatically in the state. After the 5th U.S. Circuit Court of Appeals dismissed all challenges to the Texas Heartbeat Act this past Monday, a new frontier in pro-life legislation is now clearly evident, regardless of how the Supreme Court may rule in Dobbs.

"I think [this ruling] shows that we know this tactic works, and any state can restrict abortion now as it sees fit without waiting for the Supreme Court to overrule Roe v. Wade," said former Texas Solicitor General Jonathan Mitchell on "Washington Watch." "All we have to do is copy what Texas did. We have the blueprint."

Mitchell, who has argued five cases before the U.S. Supreme Court and who now serves as principal of Mitchell Law, was instrumental in laying the groundwork for Texas' Heartbeat Act. He went on to explain why the change in tactics were needed after decades of pro-life court defeats due to Roe.

"We needed to try a different approach to what we had been doing before and what happens under the undue burden standard that the Supreme Court invented," Mitchell said. "It's a highly vague test. It's hard to predict how a Supreme Court will rule when you enact legislation. And what we had been doing in the past was enacting statutes, not knowing whether they would ultimately hold up in court ... We had to change the tactics that we were using and do more to just box out the federal judiciary from even having jurisdiction to consider the cases. And that's what Texas did."

As FRC President Tony Perkins pointed out, a similar strategy was tried by pro-life groups in the 80's "to go after abortion [businesses] for liability, for committing abortions. We saw for a while that effort was used more in the civil courts, but it never caught traction. What made this different?"

"The difference here is that they're expanding the scope of potential plaintiffs by allowing any person to sue, essentially taking away the state's enforcement power and giving it to private citizens rather than putting it in the hands of state officials," Mitchell explained. "[This means that] there's no way for the abortion providers to know in advance who's going to sue them. So that's why they can't challenge the statute in court pre-enforcement."

Already, other states are following the Lone Star State's lead. Oklahoma recently passed a bill modeled after Texas' law that also protects babies after six weeks gestation. Oklahoma Governor Kevin Stitt (R) is expected to sign the bill into law today.