Protesters at the Supreme Court. (Photo: Robin Bravender)
Forty-eight years have passed since a Supreme Court ruling in Roe v. Wade established a legal right to have an abortion in the United States.
Numerous efforts have been made to restrict terms of the 1973 Roe decision. So far, the law remains that the government has no authority to restrict abortions before the point that a fetus is viable, or able to survive outside the womb.
But a law that took effect Sept. 1 in Texas takes a novel procedural approach to effectively halting abortions for pregnancies after six weeks, before most women know they’re pregnant. That’s far short of the current constitutional “viability” standard. It establishes an unlimited “private right of action” in which any person or organization can sue any person or organization that aids or abets a woman seeking an abortion, though patients themselves can’t be sued under the law.
It’s a unique twist that literally empowers anyone on the planet to come to Texas and sue abortion providers, insurers who cover the procedure, women’s crisis counselors, taxi or Uber drivers or even friends or relatives who give a woman a lift to a hospital or doctor’s office. If they receive a favorable ruling, plaintiffs can pocket at least $10,000 from any person who assists a woman seeking an abortion and ask the court to order defendants to pay the very lawyers who sued them. Defendants, by contrast, are not allowed to collect attorneys’ fees, even if they prevail.
By explicitly limiting enforcement to private civil lawsuits exclusively in Texas state courts and prohibiting enforcement by any agent of state or local government, the statute seeks to circumvent any federal court review.
So far, it has worked.
By a 5-4 vote at midnight on the day the law took effect, the U.S. Supreme Court declined an emergency request from Texas abortion providers to keep the law from taking effect. While the opinion said the court takes no stand on whether the underlying law is constitutional, it sent a chill through abortion-rights supporters and left anti-abortion activists euphoric.
The past four years have not been good for abortion rights. Former President Donald Trump appointed three conservative justices to the Supreme Court during his one-and-done term. By making good on his campaign pledge to appoint “pro-life” jurists to the court, he swung the balance so far to the right that even with Chief Justice John Roberts siding with the liberal minority, it still came up a vote short on the Sept. 1 ruling.
There was already a general foreboding among abortion-rights advocates that a Mississippi case to be argued during the court’s 2021-22 court term, Dobbs v. Jackson Women’s Health Organization, might be the vehicle by which its conservative majority ends Roe. Now, Texas Senate Bill 8 might also eventually reappear before the court.
The law obliterates any requirement that a plaintiff have a concrete interest in or would suffer injury from a matter under adjudication, a doctrine known as standing.
With the door now open to litigious “bounty hunters,” Texas abortion providers have stopped performing the service fearful of ruinous court judgments and legal costs. It has sent frightened and frantic Texas women on desperate, daylong drives to neighboring states in search of abortions.
The U.S. Department of Justice filed a lawsuit Wednesday challenging the Texas law. In Oklahoma, the lawsuit contends, clinics in Tulsa and Oklahoma City report “an overall staggering 646 percent increase of Texan patients,” making it even more difficult amid a resurgent coronavirus pandemic for Oklahoma women to receive timely care.
Though applied to abortion in this Texas law, it could be amended from state to state to shut down activity another state’s political majority dislikes.
For instance, what’s to stop a Democratic-run legislature and governor from enacting a similar law that allows anyone anywhere to sue gun makers, gun dealers, gun repair shops or individual gun collectors and owners any time a gun injures someone or kills someone? So what if the plaintiff is from halfway around the world and has no connection to the event that triggered the suit?
In federal courts, plaintiffs must demonstrate standing to sue, said Jud Campbell, an associate professor of constitutional law at the University of Richmond School of Law. By creating an expansive private right of action in which standing is not required, Texas SB8 has generated concern “that is shared by a lot of people, including conservatives in the federal judiciary,” he said.
“What Texas is exploiting is that the limits on individual standing are not applicable in state courts unless the state makes them applicable in its courts,” Campbell said. “What’s new here is that the state has tried to effect an end run around what would normally be a federal lawsuit.”
A major reason the Texas law is such a powerful deterrent to Texas abortion providers is the uncertainty over how much longer Roe will stand, he said.
“If the right to provide an abortion were secure, it would not prevent them from being sued, but it would guarantee that they would eventually win in the lawsuit,” Campbell said.
For instance, if a state adopted a policy that forbade a specific religious practice and allowed violators to be sued, he explained, “you could know with 100 percent certainty as a defendant that you would win.” Because there’s no prospect of any court trimming back First Amendment religious freedoms, people would feel confident in flouting the state law and being vindicated in court and potential plaintiffs would be reluctant to sue for the same reason.
It’s beyond amazing to see a Republican Party historically averse to runaway lawsuits gleefully turn Texas into a litigation Thunderdome open to all comers eager to turn a fast buck.
Texas SB8 has already stitched itself into Virginia’s gubernatorial race this fall. Democratic nominee Terry McAuliffe has sought to manacle his Republican opponent, Glenn Youngkin, to it and to Trump. Youngkin said flatly during Thursday’s first televised debate with McAuliffe that he would not sign a Texas-type abortion law if elected, but he obfuscated when asked if he would otherwise restrict or outlaw abortion – something he was caught promising he would do in a secretly recorded video earlier this year.
In the end, this isn’t about legal doctrines, lawyerly strategies or litigation run amok. They’re just more symptoms of a poisoned, unsustainable political environment in which a balkanized society no longer hesitates to trample long-held precedents and due process protections to impose a partisan objective.
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