Texas wants citizens to enforce its most recent restrictive abortion law – and it will reward Americans, even non-Texans, who take up the challenge with a massive passive payday.
A bill set to take effect September 1st outlaws abortion in the state after a doctor discovers a fetal heartbeat, generally around the 6th week of pregnancy. But a provision of the legislation contains a novel legal strategy. The New York Times explains:
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 a very unique law and it’s a very clever law,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston who was interviewed by The Texas Tribune. “Planned Parenthood can’t go to court and sue Attorney General [Ken] Paxton like they usually would because he has no role in enforcing the statute. They have to basically sit and wait to be sued.”
Because of that uncertainty, abortion clinics are “stuck in a defensive posture,” said Howard M. Wasserman, a law professor at Florida International University in Miami in an interview with The Times. “If they lose, they are on the hook for significant sums of money,” he added.
The Texas Tribune explains the potential ramifications:
Abortion rights advocates and lawyers say the new law would allow for a cascade of lawsuits against abortion providers that would sap their time and money even if they ultimately won in court.
Family members, abortion funds, rape crisis counselors and other medical professionals could be open to lawsuits, under the broad language in the bill, according to legal experts and physicians who opposed the measure. People who sued would be awarded at least $10,000, as well as costs for attorney’s fees, if they won.
“The six-week ban is egregious enough,” Aimee Arrambide executive director of reproductive rights advocacy group, Avow Texas told The Guardian. “But the civil cause of action component is legally irresponsible on its own and could set an example for what other legislatures might introduce across the states.”
An open letter signed by nearly 400 law professors called the bill “an attempt to avoid a constitutional challenge that the state will likely lose.” It continues, “this broad and unprecedented abuse of civil litigation to advance a political agenda has drawn outrage from the legal community in Texas.”
An amendment to the law prevents rapists from suing their victims, but The Guardian explains “the law does nothing to prevent someone associated with a rapist, like a friend or family member, from suing his victim.”
“This bill empowers rapists and abusers, and lawyers and trolls who want to abuse and clog up our courts,” said Representative Donna Howard, a Democrat before the bill’s final passage. “And this forced pregnancy act will drive women back into the [pre-Roe] shadows out of fear of harassment through lawsuits that anyone in this country can file.”