Citizens, Not the State, Will Enforce New Abortion Law in Texas
The measure bans abortions after about six weeks of pregnancy. And it
effectively deputizes ordinary citizens to sue people involved in the
process.
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Anti-abortion protesters stand near the gate of the Texas State Capitol
after Gov. Greg Abbott signed a bill outlawing abortions after a fetal
heartbeat is detected in May in Austin, Texas.
Anti-abortion protesters stand near the gate of the Texas State Capitol
after Gov. Greg Abbott signed a bill outlawing abortions after a fetal
heartbeat is detected in May in Austin, Texas.Credit...Sergio
Flores/Getty Images
Sabrina Tavernise <https://www.nytimes.com/by/sabrina-tavernise>
BySabrina Tavernise <https://www.nytimes.com/by/sabrina-tavernise>
NYT, July 9, 2021
People across the country may soon be able to sue abortion clinics,
doctors and anyone helping a woman get an abortion in Texas, under anew
state law <https://legiscan.com/TX/text/SB8/id/2352120>that contains a
legal innovation with broad implications for the American court system.
The provisionpassed the State Legislature
<https://www.nytimes.com/2021/05/19/us/texas-abortion-law.html>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.”
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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.
The 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 hasset the record
<https://www.guttmacher.org/article/2021/07/state-policy-trends-midyear-2021-already-worst-legislative-year-ever-us-abortion>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.
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Image
State Representative Shelby Slawson spoke in support of the fetal
heartbeat bill at the Texas State Capitol in May.
State Representative Shelby Slawson spoke in support of the fetal
heartbeat bill at the Texas State Capitol in May.Credit...Jay
Janner/Austin American-Statesman, via Associated Press
Critics say the Texas law amounts to a kind of hack of the legal
system.In an open letter this spring
<https://avowtexas.org/2021/04/28/more-than-370-texas-lawyers-raise-legal-concerns-express-strong-opposition-to-hb-1515-and-sb-8-in-open-letter/>,
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.”
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“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 have authorized private citizens to sue to enforce a law
even if they themselves are not harmed, said Howard M. Wasserman, a law
professor at Florida International University in Miami. What is
different about Texas’ law, he said, is that private enforcement is not
in support of state enforcement; it is in lieu of it, a switch he said
was not good for democracy.
What is more,a Supreme Court ruling last month
<https://www.nytimes.com/2021/06/25/us/supreme-court-credit-reports-terrorism.html>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 that 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. 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.
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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.”
Today’s Best Reader Comments
*
o *Citizens, not the state, will enforce a new abortion law in
Texas:* “As a woman and lifelong resident of Texas, I've never
been more terrified. Women already have to deal with legitimate
fears of being sexually assaulted, but the thought thatI would
not have a choice
<https://www.nytimes.com/2021/07/09/us/abortion-law-regulations-texas.html?action=click&pgtype=Article&state=default&module=styln-comments®ion=MAIN_CONTENT_3&context=storylines-comments#commentsContainer&permid=113582296>
if
god forbid that happens and that I became pregnant as a result
is almost too much to bear.”/Rachel, Texas/.
o *Zaila Avant-garde makes spelling history:* “I was completely
captivated by Ms. Avant-garde. She is smart, witty, and
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<https://www.nytimes.com/2021/07/09/us/zaila-avant-garde-spelling-bee-winner.html?action=click&pgtype=Article&state=default&module=styln-comments®ion=MAIN_CONTENT_3&context=storylines-comments#commentsContainer&permid=113581045>,
I have more optimism about our future.”/NM OH, Ohio./
o *A landlord said her tenants are terrorizing her. She can’t
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after this pandemic
<https://www.nytimes.com/2021/07/09/nyregion/rent-landlord-eviction-moratorium.html?action=click&pgtype=Article&state=default&module=styln-comments®ion=MAIN_CONTENT_3&context=storylines-comments#commentsContainer&permid=113585418>.
Not only will landlords implement stricter standards, many will
just sell to avoid the headaches altogether.”/RP, Massachusetts/.
The Texas law has energized abortion opponents. Mark Lee Dickson,
director of Right to Life of East Texas, said he knew many people who
were eager to sue abortion providers if the law took effect.
Image
Planned Parenthood sued the city of Lubbock, Texas, over its new
ordinance restricting abortion, but the judge threw the case out and the
local clinic stopped providing abortions.
Planned Parenthood sued the city of Lubbock, Texas, over its new
ordinance restricting abortion, but the judge threw the case out and the
local clinic stopped providing abortions.Credit...Planned Parenthood of
Greater Texas, via Associated Press
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, 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 took effect, clinics and doctors could defend themselves against the
citizens who sue and might 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’ 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.
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“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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