The new law banning most abortions in Texas was written by opponents of abortion in the legislature to place clinics and providers at a clear disadvantage in the legal system.
And it does so using a series of unusual provisions, starting with the way Senate Bill 8 will be implemented: by lawsuits filed in a state court by members of the public, whether they have anything to do with the contested abortion or whether they even live in Texas.
According to SB 8, “anyone” can sue abortion doctors, nurses and clinic staff. They can also sue someone who “helps or incites” an illegal abortion, or even if they only intend to provide that help, including those who pay or reimburse the cost of an abortion.
“This ability to demand from anyone is really unusual,” said University of Houston law professor Seth Chandler.
In general, in order to successfully sue someone, a plaintiff must prove that they were injured in some particular way, Chandler said.
Southern Methodist University law professor Joanna Grossman agrees.
“I can’t think of any other area under Texas law where the legislature grants the right (to sue) to people who have not suffered a legally recognized injury,” Grossman said.
Texas abortion law adds a $ 10,000 “reward”
SB 8 also allows successful plaintiffs to collect at least $ 10,000 for each exposed illegal abortion, with the opportunity to charge from several people involved in the same procedure.
“By the way, that $ 10,000 is a minimum. It’s just a flat,” Chandler said. “What is unusual here is the proportion of such damages. In general, the Supreme Court has said that the proportion of punitive damages and actual damages should not exceed 10. Here, people have suffered essentially zero dollars in damages. real, but that allows them to receive at least $ 10,000 in damages.
“The statute does not call them punitive damages, but it is exactly what they are, because they are designed to punish the abortion provider or the promoters for performing activities that the perpetrators do not like. It is not really designed to compensate the plaintiff for an injury he suffered, ”he said.
Another unusual feature of SB 8 is its asymmetrical focus on the winners and losers of the room.
If a lawsuit is successful, the judge is required to oblige the abortion provider to pay attorney’s fees and the attorney’s court costs.
The same penalty does not apply to prosecutors who lose in court. SB 8 prohibits the judge from awarding legal fees and attorney’s fees to a successful abortion provider, regardless of how many times they are sued or how many courts prevail.
SB 8 also allows Texans to file a lawsuit in their home county instead of the county where the abortion occurred, giving plaintiffs access to district judges who could have been elected in much more conservative areas than in major cities. , where most abortion clinics operate. , Said Chandler.
“That’s really the most significant provision,” Chandler said. “Because anyone can be a suitor, it basically allows Texas’ most conservative sites to be used as a forum.”
An upcoming deluge of lawsuits?
SB 8 prohibits abortions after detecting fetal heart tones, which usually occur around the sixth week of pregnancy, before most women know they are pregnant. Lawsuits may allege that an abortion occurred too late during pregnancy or occurred without first using a heartbeat monitor.
Abortion providers say they fear a deluge of demands from opponents of abortion, forcing them to hire lawyers and fight costly legal battles.
Grossman isn’t sure how SB 8 will play.
“The legislature anticipates that there will really be no demands because suppliers will not operate in accordance with this law. They cannot,” he said. “And that, so far, is what’s happening. Providers have basically ceased operations except for the few abortions that can be completed in six weeks.”
Groups that organize logistics and help women pay for abortions have also stopped or changed “to get women out of Texas,” Grossman said.
“All of these are scary tactics, but effective, because people literally can’t afford to operate in this world,” he said.
Powerful implications of Texas abortion law
If a lawsuit is filed, the burden would fall on the plaintiff to prove that an illegal abortion occurred, Chandler said. And while opponents of abortion may be tempted to file a lawsuit based on an assumption, subjecting providers to legal fees that could threaten their continuation of the operation, Chandler said he would recommend it.
“I would suggest that even in the most conservative jurisdictions, judges will not kindly look at plaintiffs filing lawsuits without having any evidence,” he said. “A lawyer can be sanctioned for filing an unfounded lawsuit.”
The biggest problem, Chandler said, is SB 8’s confidence in a $ 10,000 “reward” for enforcing a law that is clearly unconstitutional according to the U.S. Supreme Court precedent, even though the high court went decline to block the law this week while litigation continues for the fate of SB 8.
“The general picture here is, yes, it’s about abortion, but it’s really about someone finding an error in court proceedings to prevent people from exercising their constitutional rights,” he said.
Under that premise, Chandler asked, what should prevent New York lawmakers from putting a reward on people who own guns, or the Texas legislature, pleased with the success of SB 8, from giving a reward of 10,000? dollars to people who criticize lawmakers?
“That would be clearly unconstitutional, but people would have to spend time and money defending themselves from ridiculous demands,” Chandler said.
“The problem is that the procedure that has been developed here can be used not only to crush constitutional rights that you don’t care about, but it can also be used to crush constitutional rights that you really appreciate,” he added.