Texas's New Abortion Law Will Be Enforced by Citizens, Not the State.
Abortions after approximately six weeks of pregnancy are prohibited under the measure. Additionally, it effectively empowers ordinary citizens to sue participants in the process.
Individuals throughout the country may soon be able to sue abortion clinics, doctors, and anyone else who assists a woman in obtaining an abortion in Texas, thanks to a new state law that contains a legal innovation with far-reaching implications for the American judicial system.
The provision was included in a bill passed by the Texas State Legislature this spring that prohibits abortion after a doctor detects a fetal heartbeat, which occurs around six weeks of pregnancy. Numerous states have enacted similar prohibitions, but Texas' law is unique.
Normally, enforcement would be the responsibility of government officials, and clinics would sue those officials to make their case against the law's constitutionality. However, Texas law precludes officials from enforcing it. Rather than that, it takes the opposite approach, effectively arming ordinary citizens — including those from outside Texas — with the authority to sue clinics and others who violate the law. It compensates them with at least $10,000 for each illegal abortion performed.
“It is a complete inversion of the legal system,” Stephen Vladeck, a constitutional law professor at the University of Texas at Austin, explained. “It states that the state will not be responsible for enforcing this law. They are your neighbors.”
As a result, the law will be extremely difficult to challenge before it takes effect on Sept. 1, because it will be difficult to determine who to sue to block it, and clinic lawyers are now debating how to proceed. Other states' six-week bans have all been halted as they proceed through the court system.
On Thursday, the Texas Legislature convened a special session with a conservative agenda focused on voting rights and other issues.
The law comes in the form of the right to abortion, and the laws governing it are constantly changing. Over the last decade, abortion opponents have won significant victories in state legislatures, with restrictions limiting access throughout much of the Midwest and South. According to the Guttmacher Institute, which tracks abortion statistics and advocates for abortion rights, the 2021 legislative season set a record for the most abortion restrictions signed in a single year in the United States.
The Supreme Court has shifted as well, with conservatives now constituting a solid majority and the court scheduled to hear an abortion case next term.
According to critics, the Texas law is a form of legal hacking. In an open letter published this spring, over 370 Texas lawyers, including Professor Vladeck, stated that the bill's central flaw was its attempt to confer legal standing on abortion opponents who had not suffered personal injury. They characterized the law as a "unprecedented abuse of civil litigation" that could "destabilize the state's legal infrastructure."
“If a barista at Starbucks overhears you discussing your abortion and it occurred after six weeks, that barista has the authority to sue the clinic where you obtained the abortion and anyone else who assisted you, such as the Uber driver who drove you there,” Melissa Murray, a law professor at New York University, explained.
Certain statutes allow private citizens to sue to enforce a law even if they are not personally harmed, such as California's consumer protection law, which allows anyone in the state to sue a business for disseminating false information or engaging in other unfair business practices, according to Howard M. Wasserman, a law professor at Florida International University in Miami. What makes Texas' law unique, he said, is that private enforcement occurs in lieu of state enforcement, a switch he believes is detrimental to democracy.
Additionally, a recent Supreme Court decision involving a credit reporting company rejected the concept of individuals suing when they have suffered no tangible harm. Professor Wasserman stated that while that case involved lawsuits in federal court, lawyers for the clinics would almost certainly use it in their arguments in Texas.
Clinics have most frequently challenged abortion restrictions in Texas in federal court, where they have prevailed more frequently than at the state level. Supporters of the new law argue that it enables abortion cases to be litigated in the state where they originated — Texas — without anti-abortion measures being immediately suspended by a federal judge, as is frequently the case.
According to John Seago, legislative director for Texas Right to Life, the state's largest anti-abortion organization, some in the anti-abortion movement believed that "this was not working in federal court, so let's try a different route."
The clinics' attorneys argue that a six-week abortion ban is clearly unconstitutional, and that the Texas law is designed to protect the state from legal challenges. Currently, federal protection extends to pregnancies up to the point at which a fetus can sustain life outside the womb, approximately 23 or 24 weeks, and six weeks is frequently before a woman even realizes she is pregnant. Given the federal courts' experience adjudicating constitutional rights cases, clinic lawyers argue, it makes sense to seek relief there. If the new law becomes law, it will make that much more difficult.
The clinics and their staff are "trapped in a defensive posture in state court, and there is a great deal at stake," Professor Wasserman said. “If they lose, they will be liable for substantial financial losses.”
The Texas law has galvanized opponents of abortion. Mark Lee Dickson, executive director of Right to Life of East Texas, said he knows numerous individuals who wish to sue abortion providers if and when the law takes effect.
He pushed for a similar ordinance in Lubbock last year. He stated that the effort involved more than 200 churches. Mr. Dickson travels to cities to assist them in enacting such ordinances, noting that nearly 30 cities in the state have done so. Lubbock was the only one with an abortion clinic, but he said the sentiment among residents in those areas could motivate a broader effort to enforce the state law.
He stated that individuals sought to sue as an expression of their fervent belief that abortion is wrong. They viewed the procedure as "murder of innocent children" and desired to do everything possible to prevent it, he explained.
Abortion clinics' attorneys are deciding how to respond. According to Julie Murray, a lawyer for Planned Parenthood Federation of America, if the law is implemented, clinics and doctors will be able to defend themselves against citizens who sue and may prevail in individual cases. However, what a judge decides in one case is not binding on subsequent cases, and she predicted a flood of lawsuits across Texas' 254 counties.
Mr. Seago stated that he did not anticipate a flood of suits. State judges will continue to expect claimants to make a case, and identifying targets — abortions performed after the fetal heartbeat was detected — would not be easy, he said.
“There are still quite a few hoops for a claimant to jump through,” he explained.
However, even the threat of litigation can force a clinic to discontinue abortion services. That is precisely what occurred in Lubbock. Planned Parenthood, which operates a clinic in the area, sued the city in May, following the passage of the ordinance through a voter initiative. However, the judge dismissed the case, stating that the organization lacked standing to sue the city. The law took effect on June 1, and the clinic immediately ceased providing abortions. Planned Parenthood filed a motion for reconsideration last week.
Angela Martinez, manager of the Lubbock Planned Parenthood health center, said she was forced to inform patients that they would now have to travel five hours each way to Dallas for care.
“It's a challenging conversation,” she explained.