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The decision by Republican lawmakers to ban almost all abortions in Texas was achieved through a huge unprecedented expansion of who can file a lawsuit against another person: by law, anyone can sue anyone who performs, help or intend to assist in an abortion, regardless of whether they have a personal involvement in the abortion performed.
“It’s very open,” said David Coal e, Texas’s appellate attorney. “It’s a radical expansion of the concept of standing.”
The expansion has far-reaching legal implications, legal experts say, challenging the very notion of what a court serves and encouraging civilians to enforce the law, a duty traditionally left to government. It’s also an investment by Texas Republicans over criminal law, in which they’ve usually tried to limit the ability to sue, not expand it.
Legal experts also told The Texas Tribune that the measure is part of an emerging trend in Republican-dominated governments that have difficulty constitutionally banning cultural grievances. Instead, they authorize civilians to sue for civil remedies.
Jon Michaels, a professor at UCLA Law, points to Tennessee, where students, teachers, and public school employees can sue schools if they share a bathroom with a transgender person, as well as Florida, where student athletes can sue their school if they allow it. a transgender athlete to play.
“It’s a way to step back and wink while constitutional violations occur,” Michaels said. “It compromises democracy.”
Texas abortion law goes much further. Normally, in the crime law, which is used to compensate injured people, a person must have incurred some form of personal injury to sue another person. This is the very nature of what is intended to end a civil court in this case, several legal experts told the rostrum. The new Texas abortion law, however, grants this privilege to anyone.
Opponents of abortion, who support the new law, said the question of permanence or the damage that can be shown to filing a lawsuit is debatable because the legislature has granted it to everyone according to SB 8.
“They have a right because the legislature gives it to them,” said John Seago, legislative director of Texas Right to Life. “It doesn’t have to hurt you personally.”
Some, however, say the law reduces the nature of what a civil court is supposed to do: provide recourse to an aggrieved party.
“There’s kind of an irreducible minimum that you have to have before you get to court, just like it’s about defining a court,” Coale said. “And that goes much further.”
Seago told various media outlets that the measure was designed to prevent federal issues of violating the constitutional right to abortion, which have been recognized by federal courts since Roe v. Wade nearly 50 years ago, because “activist judges.” of the district bloc restrictions on abortion because they believe the laws violate the Constitution.
“No sense of coherence”
To date, Texas law has been very successful in achieving a long-held goal of many conservatives: reducing the number of abortions. Planned Parenthood and Whole Woman’s Health, both of which operate multiple clinics in the state, reported canceling all abortions that violated the new law, which is estimated to account for approximately 85% of abortions in Texas.
But in a way, the new law is a rough view of Texas Republicans who have long faced the proliferation of lawsuits, who often try to raise the bar to file a lawsuit, not lower it. For decades, groups including the powerful Texans For Reesuit Reform have tried to reduce “unnecessary demands,” especially against businesses, by funding and helping elect Texas Republicans. In the mid-1990s, George W. Bush included criminal reform into his platform while presenting himself to the governor of Texas. In the most recent legislative session, lawmakers hampered the demand for commercial truck companies and the limited lawsuits that can be filed against companies for exposing workers and others to COVID-19.
But in a statement, Lucy Nashed, communications director for Texans for Reesuit Reform, said the group was not opposed to the abortion law. He said the group often opposes laws that are likely to generate new causes of action that will likely encourage the plaintiff’s bar to engage in mass litigation, such as after Hurricane Ike in 2008 with weather-related litigation. .
“We do not believe SB 8 created the circumstances that provide a center of massive profits for the plaintiff’s bar,” Nashed wrote. “Mass crime models require a more ubiquitous universe of potential plaintiffs.”
Michaels, the UCLA professor, said Republicans who reverse the course on criminal law are incompatible with party ideology and are simply politicians; he said it provokes cultural wars and encourages a growing base of Republican voters who are energized by moral outrage.
“Republicans have always hated Plantiff’s trial lawyers and bar, and have always been against such lawsuits,” Michaels said. “They always talked about people suing McDonald’s or Starbucks, and how terrible it was. Now they are creating these things because it is advantageous to do so.
“There’s no sense of consistency,” he said. “It’s a way to subsidize a community or a base that gets easily outraged and gives them money and legal opportunities to cause a lot of problems.”
Adriana Piñon, a staff lawyer and political advisor to the Texas ACLU, said the new law “stacks the cover” against defendants and encourages plaintiffs to sue by including various mechanisms in the law, such as banning a change of location unless all parties agree, limiting the legal defenses the defense may file and awarding the plaintiff at least $ 10,000 if they are successful in the lawsuit.
“That leaves the door to the living room open in Texas,” he said.
Piñon and others are concerned about an avalanche of lawsuits that could be initiated against abortion providers, doctors, nonprofits, volunteers, or even private citizens who help a family member or friend get an abortion.
But Seago, of Texas Right to Life, disagrees with the arrival of a wave of lawsuits, simply because abortion clinics have already canceled appointments. In addition, he said, “it is not a winning strategy” to flood defendants with a defendant, at the risk of a judge considering them frivolous.
“None of this is relevant if they comply with the law and that was the goal,” Seago said. “Some of the rhetoric surrounding this bill acts as if the judiciary is not working. … I think we can have more faith in our judiciary than assuming that they will only be pawns of the pro-life movement.”
Still, opponents of the law point out that even rejecting a lawsuit can be heavy and sometimes requires expensive lawyers. The abortion law specifically prohibits plaintiffs from being ordered to pay the defendants’ legal fees; opponents fear that the risk of filing an unfounded lawsuit is low for plaintiffs and that defending themselves from many lawsuits, even if they are dismissed, can still be detrimental to the clinic or doctor.
The closest legal precedent for law enforcement, as some have called it, is in environmental legislation. The Clean Air Act and the Clean Water Act allow civilians to sue the federal government when it does not comply with the law. But even so, the courts have reduced these definitions over time and the statute is limited. For example, an environmental group may file a lawsuit, but must prove that one of its members was directly affected by the environmental damage.
Traditionally and generally, said David Noll, a law professor at Rutgers Law School, our society does not want random people to make decisions about whether or not a law applies.
“You confer these decisions on a district attorney or an attorney general, who is subject to ethical laws and who looks after the public interest,” he said. “SB 8 reverses this by placing private litigants motivated by ideological considerations in the position of a government prosecutor.”
Noll said lawmakers paired different precedents to create something new: a “Frankenstein monster,” he said.
Seago did not agree that SB 8 was a new concept. He pointed to fraud in Medicaid, in which plaintiffs do not have to prove they have lost money personally to file a fraud lawsuit. In these cases, Medicaid is a government-administered program. He compared the civil lawsuits with a complaint mechanism to ensure that the abortion law was followed.
“Unexplored water” legally
Seago said his group wants cases in state courts instead of federal courts, where he said “activist” federal judges tend to rule in favor of a constitutional right to abortion. “This is a different way for these legal battles to go into state courts,” he said.
These state courts will also address the issue of permanence or who can sue, legal experts said. Coale said there are serious questions about whether the Texas constitution requires anyone to have the right to file a lawsuit, or whether, in fact, the protection of the legislature will be enough to allow people to bring what lawyers call “grievances.” widespread “, damages that were not committed against them personally.
The “open question” is whether permanence is something that courts only consider to find out who can sue under a particular law, or whether, as Coale said, permanence is something that is so central to the nature of the which is a court that limits the legislature. Anyway, he said, Texas is in “unknown waters.”
“The concept of a private attorney general is well known,” he said, “but the concept of that [type of] the private attorney general is a way out. I can’t think of any analogues. “
Outreach: Planned Parenthood and Texans for Lawsuit Reform have been financial supporters of The Texas Tribune, a nonprofit news organization that is funded in part by donations from members, foundations, and corporate sponsors. Financial supporters have no role in Tribune journalism. Here is a complete list.
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