A few weeks ago, I considered whether the new Texas abortion statute, the "Texas Heartbeat Act," violated the "Separation of Powers" Clause of the Texas Constitution of 1876. This week I examined whether the Heartbeat Act may violate the "Open Courts Clause," another unique feature of the 1876 state constitution, which also has no direct equivalent in the U.S. Constitution.
While the application of that clause to the Act would raise some novel questions, the near-shutdown of abortion services in Texas over the last month suggests that the practical effect of the Act has been to deny the constitutional guarantee of "open courts" to providers--who would otherwise seek to defend the legality of the services they offer.