As national attention shifts to Texas at the beginning of a special legislative session that will, among other things, involve Republican efforts to pass voter-suppression legislation previously blocked by Democrats, there is renewed interest in one statute passed in the spring that is due to take effect in September. On one level, it’s entirely unusual: a “fetal heartbeat” law banning abortions occurring after about six weeks of pregnancy, one of 90 restrictive laws passed by (mostly) Republican state legislatures this year alone. That makes it blatantly unconstitutional under existing federal constitutional law (though that could be changed by the U.S. Supreme Court in its 2021-2022 term via its review of a new Mississippi law), and normally Planned Parenthood and other providers of and advocates for reproductive rights would already be in court suing the state to halt enforcement.
But that’s where the evil genius of the Texas law signed by Governor Gregg Abbott in May becomes apparent: It’s not the state of Texas that will enforce it, but, well, anybody else, as Spectrum News reported when the bill was first enacted:
Texas’s broadly worded “heartbeat law” is unique in that it allows any person in the country to sue anyone involved in a Texas abortion, including a family member who “aides and abets” a woman seeking to terminate her pregnancy, a friend who drives her to the clinic, and/or possibly even an attorney who offers legal advice to anyone in the chain.
Normally in this type of litigation, groups like Planned Parenthood or ACLU sue a government official trying to enforce the law. In this case, there’s a chance that any organization wanting to challenge the law may have to wait until the first lawsuits start to roll into the system, which would allow the law to go into effect before the courts can stop it, as was the case in Mississippi.
The law also allows Texans filing suit under it to do so in their own counties, which will lead to some creative forum-shopping by anti-abortion activists. And dig this: It sets up a reward of $10,000 (plus attorney and court costs) for any successful suit against any abortion provider or anyone who assists in procuring this (for the moment) constitutionally protected procedure. It’s like a bounty on clinics and anyone — really, anyone — who helps a woman exercise her rights, available to everybody — really, everybody — who might object. As the New York Times notes, the law has Texas lawyers in an uproar:
Critics say the Texas law amounts to a kind of hack of the legal system. In an open letter this spring, more than 370 Texas lawyers, including Professor [Stephen] Vladeck, said a central flaw was its attempt to confer legal standing on abortion opponents who were not themselves injured. They called the law an “unprecedented abuse of civil litigation,” and said it could “have a destabilizing impact on the state’s legal infrastructure.”
“If the barista at Starbucks overhears you talking about your abortion, and it was performed after six weeks, that barista is authorized to sue the clinic where you obtained the abortion and to sue any other person who helped you, like the Uber driver who took you there,” said Melissa Murray, a law professor at New York University.
This approach is unprecedented. The occasional laws encouraging citizen enforcement measures are invariably in support of, not a replacement for, official law enforcement efforts. But the whole point of this law is to privatize enforcement entirely to create a moving target for those seeking to overturn the law, while tilting the scales of justice far in the direction of the anti-abortion activists sure to exploit it.
Sooner or later, Texas and federal courts will review this law, and it may well not survive. It is a particularly devious type of the TRAP (Targeted Regulation of Abortion Providers) laws that have not fared well at SCOTUS, and it aims to ban — without exceptions for pregnancies resulting from rape or incest — the pre-viability abortions protected since Roe v. Wade. The new statute may also violate state constitutional standards for civil litigation by extending standing to sue far beyond the circle of those allegedly harmed by the conduct involved. But however it fares in the judicial system, Texas Republican pols (only one Democrat in each legislative chamber supported this abomination) are probably congratulating themselves for the excitement they have generated among the garden-variety, fetus-poster-wielding self-designated protectors of the unborn, as the Times notes:
The Texas law has energized abortion opponents. Mark Lee Dickson, director of Right to Life of East Texas said he knows many people who want to sue abortion providers, if and when it takes effect….
He said people wanted to sue as an expression of their deeply held belief that abortion is wrong. They saw the procedure as “murder of innocent children and they wanted to do everything they could to stop that,” he said.
Nothing like giving vigilantes the sanction of law, plus easy access to the courts and financial awards for harassing their targets.