Lawsuits Against the Texas Heartbeat Act

are Meritless

 Mary Castle, J.D.  |  30  August 2021

Last week, Attorney Michelle Simpson Tuegel filed a lawsuit to block the Texas Heartbeat Act (the Act) that protects human life beginning at the detection of a fetal heartbeat.  The Act will go into effect on September 1. One of the enforcement mechanisms of the Act includes holding anyone civilly liable who aids and abets in the carrying out of an abortion. Roe v. Wade has created a profitable legal industry for pro-abortion attorneys.  Under the Act, attorneys who assist or counsel a woman in obtaining an abortion are subject to punishment in addition to abortionists, abortion facilities, and counselors.

Ms. Tuegel is concerned that her livelihood will be affected when she can no longer give legal advice to women on how to obtain an abortion. The legal advice she should give to women on abortion under the Act, is that the woman cannot legally obtain an abortion after a detectable heartbeat. But, Ms. Tuegel’s lawsuit is not based on her ability to properly execute the law. Her legal arguments have at least 3 major flaws: 1) a misunderstanding of the role of the attorney 2) a misunderstanding of the relationship between the attorney and client, and 3) the falsity of a constitutional right to an abortion. 

One of the lawsuit’s major arguments is that the Act “endangers lawyers who provide legal advice on abortions.” This argument is flawed because it misunderstands the role of an attorney. While attorneys do exist to help people by providing fair representation, ethics rules have been developed in order to ensure that lawyers do not break the law in the process of representing clients. These ethics rules exist to prevent an attorney from becoming a conspirator in a client’s crime. An attorney who assists a client in a crime could not only lose her license, but she could face punishment as well. There are attorneys that do not simply answer legal questions on abortion, but actively circumvent laws to help a woman to obtain an abortion. An example is Jane’s Due Process, a legal organization that artfully maneuvers the loopholes in Texas’ judicial bypass laws, to help young girls obtain abortions without parental notification or consent. It can be assumed that most attorneys probably thought that the Act would increase their earnings by giving them an opportunity to tell women how to circumvent the law in order to obtain an abortion, even though illegal. To their dismay, the Act will hold them liable to do their jobs as attorneys: to defend the law. Aiding and abetting in breaking the law should always be considered unethical behavior for an attorney.

The plaintiff of the lawsuit has been quoted as saying that the Act “create[s] a framework that pits attorneys against their own clients.”[1] Apparently, the plaintiff misunderstands the relationship between an attorney and a client. The role of an attorney is to defend the law while helping a client; not to work in tandem with a client to manipulate the law. The relationship between an attorney and client has boundaries. Attorneys must make decisions all the time that a client may not agree with. Moreover, the attorney-client privilege does have exceptions when it comes to crime, fraud, or a tort. Helping a woman obtain an illegal abortion would be outside an appropriate attorney-client relationship under the Act. The Act should be seen as not only protection of life but protection for an attorney from engaging in unlawful assistance of breaking the law by helping a woman obtain an illegal abortion. As stated earlier many potential clients may come to an attorney for a solution to work around the new law in Texas in order to obtain an abortion. Thus, the Act also protects the attorney from being politically pressured to help a woman break the law.

It is settled that an attorney is not a co-conspirator. An attorney’s actual role is a fiduciary. A fiduciary’s role is to act in the best interest of her client. It is not in the best interest of a client for her to break the law.  The provision of the Act that would hold an attorney liable is keeping the attorney in her proper place as a legal fiduciary. Attorneys must defend the law and counsel according to what is written in statute. An attorney should not play the role of doctor in telling a woman that she should get an abortion or in the role of co-conspirator in circumventing the law.

Lastly, the entire lawsuit falls on the premise that an attorney must be allowed to defend a woman’s right to an abortion. The flaw in this argument is, of course, that the Act’s legal strength is based on its enforceability by private citizens and not by the government, thereby sidestepping constitutional claims like this one.  Further, in the last 48 years since Roe was legalized, it is not settled law that the Constitution guarantees a right to an abortion. The issue of the legality of abortion will again be up for debate at the Supreme Court in the Dobbs v. Jackson Women’s Health Organization case.

In 2009, the legal drama “Law and Order” boldly took on the topic of abortion in an episode titled “Dignity.” The episode centers on a prosecutor who is pro-life but must indict an activist who murdered an abortionist. In his closing arguments, he tells the jurors that despite all differences of opinion, all people are joined in one belief that every life is special and unique and that belief compels people to reject violence. Evidently, there is a case for punishing the violence against the unborn in court and attorneys should consider this viewpoint.

The legal mechanism to hold attorneys liable in the Act is strong. Attorneys play more of a role in the procurement of abortion than many realize. The Act’s authors Senator Bryan Hughes and Representative Shelby Slawson, who are both practicing attorneys, realize that stopping a preborn baby’s heart against the law is outside the bounds of an attorney’s duties. The Judge will likely think the same and find that Ms. Tuegel’s claims are invalid.

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[1] Olohan, Mary Margaret. “Liberal Texas Attorney Files Lawsuit Against New Law Banning Abortions.” LifesiteNews.com, 23 August 2021, https://www.lifenews.com/2021/08/23/liberal-texas-attorney-files-lawsuit-against-new-law-banning-abortions/.  quoting Tuegel v. State of Texas (192d Dt. Ct. 2021) (No. 21-11237).