Texas Abortion Law Goes Into Effect: Allows Private Citizens To Sue Abortion Providers

CITY OF WASHINGTON (September 2, 2021)–during the worse hurricane  and flooding across the Gulf Coast and Northeast–the United States Supreme Court released its thundering decision which–sent shock waves across the Nation regarding women health late Wednesday.  Putting the conservative majority justices against the liberal minority justices and the Chief Justice.

The Court decided not to get involved in the Texas Abortion Law–allowing the law to go into effect.  The law doesn’t end Roe vs. Wade, but the law was passed to prevent the death of the fetus when the heart beats at 6 weeks of pregnancy.  

The law allows private citizens to sue abortion providers and anyone  who helps a woman to obtain an abortion — including those who give a woman a ride to a clinic or provide financial assistance to obtain an abortion. Private citizens who bring these suits don’t need to show any connection to those they are suing, wrote NPR.

The law makes no exceptions for cases involving rape or incest but does allow medical care for emergencies.

Chief Justice Robert’s wrote, “this Court should not permit the law to take effect without assuring the applicants (and the respondents) an opportunity first and fully to make (or to refute) these and other arguments supporting the request for an injunction.

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.

Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act
rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.

In May 2021, the Texas Legislature enacted S. B. 8 (the Act). The Act, which took effect statewide at midnight on September 1, makes it unlawful for physicians to perform
abortions if they either detect cardiac activity in an embryo or fail to perform a test to detect such activity. §3 (to be codified at Tex. Health & Safety Code Ann. §§171.201(1), 171.204(a) (West 2021)). This equates to a near-categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability. According to the applicants, who are abortion providers and advocates in Texas, the Act immediately prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close.

The Act is clearly unconstitutional under existing precedents. See, e.g., June Medical Servs. L. L. C. v. Russo, 591 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in judgment) (slip op., at 5) (explaining that “the State may not impose an undue burden on the woman’s ability to obtain
an abortion” of a “nonviable fetus” (citing Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992); internal quotation marks
omitted)). The respondents do not even try to argue otherwise. Nor could they: No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law.

The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not. The Act authorizes any private citizen to file a lawsuit against any person who provides an abortion
in violation of the Act, “aids or abets” such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct. §3 (to be codified at Tex. Health & Safety Code Ann. §171.208). Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. Ibid. In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.

The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law.

Advocates Who Oppose Abortions

Groups who oppose abortion rights have pushed for this Texas law, hoping that it will be harder for federal courts to knock it down. Instead of requiring public officials to enforce the law, this law allows individuals to bring civil lawsuits against abortion providers or anyone else found to “aid or abet” illegal abortions.

“These lawsuits are not against the women,” says John Seago with Texas Right to Life. “The lawsuits would be against the individuals making money off of the abortion, the abortion industry itself. So this is not spy on your neighbor and see if they’re having an abortion.”

What’s Next?  

Multiple court challenges to the law are underway, including several lawsuits in state court in Texas targeting anti-abortion-rights groups including Texas Right to Life. Abortion rights groups are also organizing protests and demonstrations in Texas in opposition to the law.

A spokeswoman for Texas Right to Life told NPR that no lawsuits against abortion providers are imminent, and abortion providers say they will comply with the law as long as it is in effect.

Read the US Supreme Court’s decision here.


Source: US Supreme Court and NPR articles used for this article.

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