Citizens, Not the State, Will Enforce New Abortion Law in Texas
By: Sabrina Tavernise (MSN)
S E E D E D C O N T E N T
People across the country may soon be able to sue abortion clinics, doctors and anyone helping a woman get an abortion in Texas, under a new state law that contains a legal innovation with broad implications for the American court system.
The provision passed the Texas State Legislature this spring as part of a bill that bans abortion after a doctor detects a fetal heartbeat, usually at about six weeks of pregnancy. Many states have passed such bans, but the law in Texas is different.
Ordinarily, enforcement would be up to government officials, and if clinics wanted to challenge the law's constitutionality, they would sue those officials in making their case. But the law in Texas prohibits officials from enforcing it. Instead, it takes the opposite approach, effectively deputizing ordinary citizens — including from outside Texas — to sue clinics and others who violate the law. It awards them at least $10,000 per illegal abortion if they are successful.
"It's completely inverting the legal system," said Stephen Vladeck, a constitutional law professor at the University of Texas at Austin. "It says the state is not going to be the one to enforce this law. Your neighbors are."
The result is a law that is extremely difficult to challenge before it takes effect on Sept. 1, because it is hard to know whom to sue to block it, and lawyers for clinics are now wrestling with what to do about it. Six-week bans in other states have all been blocked as they make their way through the court system.
Texas' Legislature began a special session on Thursday, with a conservative agenda taking aim at voting rights and other issues.
The law comes as the right to an abortion and the laws governing it are in flux. Abortion opponents have scored major victories in state legislatures over the past decade, with restrictions whittling down access through much of the Midwest and South. The 2021 legislative season has set the record for the most abortion restrictions signed in a single year in the United States, according to the Guttmacher Institute, which tracks abortion statistics and supports abortion rights.
The Supreme Court has shifted too, with conservatives now making up a solid majority, and an abortion case before the court next term.
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 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.
Some statutes do authorize private citizens to sue to enforce a law even if they themselves are not harmed, for example California's consumer protection law, which gives anyone in the state the right to sue a company for disseminating false information or engaging in other unfair business practices, said Howard M. Wasserman, a law professor at Florida International University in Miami. What's different about Texas's law, he said, is that private enforcement is not in support of state enforcement; it's in lieu of it, a switch he said was not good for democracy.
What is more, a Supreme Court ruling last month involving a credit reporting company rejected the concept of people suing when they were not concretely harmed. That case involved lawsuits in federal court, but Professor Wasserman said lawyers for the clinics would probably use it in their arguments in Texas.
The most common place for clinics to challenge abortion restrictions in Texas has been federal court, where they have won more often than at the state level. Supporters of the new law say it is an attempt to argue abortion cases in the courts of the state where they originated — Texas — without anti-abortion measures immediately being suspended by a federal judge, as often happens.
John Seago, legislative director for Texas Right to Life, the largest anti-abortion organization in the state, said that some people in the anti-abortion movement thought "this was not working in federal court, so let's try a different route."
Lawyers for the clinics argue that a six-week abortion ban is clearly unconstitutional, and the Texas law is designed to insulate the state from a challenge. Federal protection currently extends to pregnancies up to the point at which a fetus can sustain life outside the womb, about 23 or 24 weeks, and six weeks is often before a woman even knows she is pregnant. Given that federal courts are experienced at deciding constitutional rights issues, lawyers for clinics say, it is logical to go there for relief. The new law, if it takes effect, will make that much harder.
The clinics and their staff "are stuck in state court in a defensive posture, and there's a lot at stake," Professor Wasserman said. "If they lose, they are on the hook for significant sums of money."
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.
Last year, he pushed for an ordinance in Lubbock, whose legal structure was similar. He said that more than 200 churches were part of that effort. Mr. Dickson travels to cities to help them pass such ordinances, and noted that there are almost 30 in the state that have done so. Lubbock was the only one with an abortion clinic, but the sentiment among people in those places could power a broader effort to enforce the state law too, he said.
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.
Lawyers for abortion clinics are deciding how to respond. Julie Murray, a lawyer for Planned Parenthood Federation of America, said that if the law takes effect, clinics and doctors could defend themselves against the citizens who sue and may prevail in individual cases. But what one judge does in one case is not binding on other cases, and she said there could be a flood of suits across Texas's 254 counties.
Mr. Seago said he did not think there would be a flood of suits. State judges will still expect claimants to build a case, and identifying targets — a specific abortion that was performed later than the fetal heartbeat was detected — would not be easy, he said.
"There's still quite a lot of hoops to jump through for a claimant to prevail," he said.
But even the threat of suits can cause a clinic to shut down abortion services. That is what happened in Lubbock. Planned Parenthood, which has a clinic there, sued the city, after the ordinance passed in a voter initiative in May. But the judge threw out the case saying the organization did not have standing to sue the city. The law went into effect June 1, and the clinic has stopped providing abortions. Last week, Planned Parenthood filed a motion to reconsider.
Angela Martinez, manager of the Planned Parenthood health center in Lubbock, said she had to tell patients they would now have to drive five hours each way to Dallas for care.
"It's a difficult conversation," she said.
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WTH
this is just more wedge issue bullshit put forth by texas' teabag skateboard governor, with a severe case of chapped lips from 4 years of licking trumps ass, to deflect from his total incompetence of governing.
This is seriously fucked up. So some random person can sue over someone else getting an abortion and they can get 10k?
Our country is FUBAR
I don't understand how "ordinary citizens" have legal standing to bring a lawsuit. They are not harmed by a women getting an abortion, or by an abortion clinic performing one. I know we have a few attorneys here - doesn't a potential plaintiff have to show they've potentially been harmed to have legal standing to file a lawsuit?
I don't understand why they say the law cannot be challenged because the state is not enforcing it....
I agree with you also. How in the hell would it be any of their business much less cause them any harm.
Makes no sense to me.
I was thinking that exact thing. There's no way this would hold up in court.
The ONLY thing I can see them being able to argue is that they have been emotionally harmed, but I don’t see a judge going for that because then it opens up a big can of worms. If anyone can sue someone they have never met and don’t live anywhere near for emotional harm caused by an abortion then it’ll be all of 10 seconds before someone challenges why it is limited to just that one situation.
Yup. Next, they'll have lawsuits for "emotional harm" because somewhere in Texas, somebody's ice cream cone melted all over their shirt because the power grid couldn't keep the AC running. Doesn't need to be the plaintiff's ice cream - could be anybody's.
Don't give them any ideas.
Exactly. I don’t see any way that they could argue abortion being such a unique situation that would justify allowing anyone to sue due to emotional distress, but nothing else.
Only example I can see is if the father of the child wanted it to live or a relative thereof (either party) was in eager anticipation of the couple's offspring. Seems kind of open ended.
The father and possibly direct family, but even then they are arguing that a woman’s medical decisions need to be based on how it might make someone else in their family feel. I don’t see that holding up.
This law is so horribly conceived it’s laughable.
Agreed
They are not harmed by a women getting an abortion, or by an abortion clinic performing one.
I believe it’s called the “butthurt clause”.
That is an understatement. Such lawsuits are frivolous and lack merit. It's just another attempt to circumvent the constitution and prevent women from exercising their right to an abortion by targeting abortion providers. Somehow, I'm not surprised to see its Texas engaging in such stupidity.
Distraction from their power grid issues?
I'm thinking just plain stupidity. There's really no other way to describe it.
I don’t see any of these succeeding. Aside from the woman’s partner I do t see anyone else having standing to file a suit and have it be taken seriously.
Exactly. The idea that anyone can sue an abortion provider for actually providing abortions is an empty threat and an excellent example of legislative stupidity.
But then there is still the matter of them saying they can't over turn the law and it can go in affect because there is no government entity to sue...
Seems like sneaky backhanded tactics to circumvent law.
Here is where I see the law failing when challenged in court, when asked about what grounds these people have to sue the ONLY grounds the state could argue for would be emotional distress. Which okay, bullshit, but okay. Now, why can I not sue for emotional distress for matters other than abortion? I don’t see them being able to justify singling out that one act and excluding all others.
Only the courts get to decide if a law can be overturned. This law will likely be challenged. But such underhanded tactics are the only tactics states opposed to abortion have. They know they can't win in court with direct restrictions on abortion. So they get devious about it.
There is no justification for this law or any lawsuits as a result of it.
It may not have anything to do with the lawsuits succeeding, it may be just about wasting clinics/organizations time, energy and resources defending against these frivolous actions so much that eventually they'll just close their doors and leave. Lol much like how many of the debates here end.
Is it dishonest and possibly corrupt, yes. Is it a surprise, no.
That's probably the intent behind it.
cool. plaintiff info will become public record, and everybody in that state can pack heat without a permit.
What does that mean?
try sounding out the words...
Now there's a classic. Lol
I don't see this law standing a judicial challenge.
I don't see this having "a destabilizing impact on the state's legal infrastructure" as the court can just whiff on lack of merit on ALL cases. Of course there has to be at least one ultra-conservative knucklehead judge that will proceed with a circus case only to be overturned on appeal. We'll see how this proceeds.
I wonder if there's anynone who can provide proper legal justification for this law? I'm inclined to think it's more of a legal bluff.
It's the threat of committing hospital time and personnel in 250 courts across the state for months. As the article states - any single judgement has no bearing at this level with any other.
Strain their resources to the breaking point?
DON'T THROW OUT YOUR WIRE HANGERS, THE PEOPLE IN TEXAS WILL HAVE A USE FOR THEM.
Or, they could use drowning, suffocation, starvation, or exposure to the elements, like the chinese did.
Come on, Gazoo, I know you have a better imagination than that. What about pulling out nails, burning at the stake, crucifying, gouging out eyes, tearing off the skin, cooking their livers for dinner, burning with a welder's torch - don't be so gentle. Carry forward your nation's demonizing of China and the Chinese people. It will help increase the terrorizing of Asian Americans.
Come on Buzz, the chinese people didn’t do those things to get rid of unwanted children, but they did drown them, suffocate them, starve them, and expose them to the elements until they died.
Do you have a non-biased report for your off topic (China is not the topic) deflecting accusations, that indicates such acts were recent - because if they are not relatively current then I'll match your remarks, such as with the Native boarding schools.
What a disgusting comment.
Disgusting? It's a lament - a lament that in this modern age there are governments that make it necessary.
Characterizing this:
DON'T THROW OUT YOUR WIRE HANGERS, THE PEOPLE IN TEXAS WILL HAVE A USE FOR THEM.
...as a 'lament', is almost as disgusting as the comment itself.
GET REAL, SISTER. At least I don't live in dreamland.
Abortion by wire coat hanger is not a thing of the past in ...
Dec 15, 2015 · F or women who lived in the United States before abortion was made legal, there are few images more evocative and distressing than the wire coat hanger.
I'm not even sure how to respond to this comment, except to say that I'm sorry for what you are going through in your life right now, and if there is anything I can do to help, let me know.
(deleted)
Actually, I've thought it over and there is something you can do to help. You see, I would really like to buy an apartment here for my wife cause at my age I don't expect to be around much longer to support her, so since you asked if there was anything you could do to help, I can send you my wife's name and our address and you could courier us a bank draft for US$250,000. It would really be appreciated, and you will have done a good deed, so you will feel really good about it.
Translation: My wife dumped my silly behind and wants me out of her house.