Texas' 6-week abortion ban lets private citizens sue in an unprecedented legal approach
By Tierney Sneed, CNN
(CNN) -- A Texas state law that bans abortion after as early as six weeks into the pregnancy is set to go into effect Wednesday.
The measure -- signed into law by Republican Gov. Greg Abbott in May -- prohibits abortion providers from conducting abortions once a fetal heartbeat is detected. It would effectively outlaw at least 85% of the abortions sought in the state, according to opponents of the law, since that point is around six weeks into the pregnancy, before some women know they're pregnant.
The law was passed amid a slew of restrictions that were approved by GOP legislatures across the country this year, after the confirmation of Justice Amy Coney Barrett jerked the Supreme Court further to right and made it more likely that the court will scale back or reverse entirelyRoe v. Wade, the landmark 1973 decision that enshrined a constitutional right to an abortion before the fetus is viable.
But among those restrictions, the Texas bill stands out for the novel approach it takes in curtailing the procedure.
Rather than imposing a criminal or regulatory punishment for those who conduct abortions after the point in the pregnancy, the state law created a so-called "private right of action" to enforce the restriction. Essentially, the legislature deputized private citizens to bring civil litigation -- with the threat of $10,000 or more in damages -- against providers or even anyone who helped a woman access an abortion after six weeks.
"The way the bill is structured incentivizes vigilante lawsuits that will harass abortion providers and those who support providing abortions in Texas," Adriana Piñon, an attorney at the Texas chapter of ACLU, told CNN.
The approach was aimed at insulating the law from the sort of federal legal challenges that would prevent it from going into effect. One such lawsuit -- brought by several clinics represented by the ACLU and other groups -- is now mired in a complicated procedural dispute that has prompted the clinics to ask for a Supreme Court intervention.
The upshot is that while the legal fight plays out, providers in Texas may have to decide whether they want to risk costly litigation brought by private plaintiffs who seek damages under the state law.
Anti-abortion activists are already preparing to bring lawsuits if clinics violate the six-week ban.
"This whole mechanism only works if there is a credible threat of lawsuits being brought against an industry if they decide to ignore the law," said John Seago, the legislative director for Texas Right to Life, which advocated prominently for the abortion ban. "So, we have been working to make sure that all those pieces are in place, that if we do have reports, that we do see evidence that they're violating the law, then we can actually enforce the law ourselves."
Seago told CNN that the push for the law was motivated in party by a letter rolled out in October by a coalition of state and local prosecutors from across the country who vowed to not enforce anti-abortion laws, even if Roe was overturned.
Though previous proposals from the anti-abortion movement included civil liabilities, the Texas ban is unique in that it is structured entirely around that threat. How it expands who can sue under the measure -- "any person," besides a government official, according to the text -- is novel in the context of abortion as well, he said.
"One of the great benefits, and one of the things that's most exciting for the pro-life movement, is that they have a role in enforcing this law," Seago said.
Impact on clinics
Abortion rights advocates say that the effect of the law will fall disproportionately on lower income people who won't be able to travel out of state to receive the procedure.
The average distance an abortion patient will have to travel once the law goes into effect will grow from 12 miles to 248 miles, according to a study by the reproductive rights research organization The Guttmacher Institute.
The clinics will need to hire lawyers to defend themselves, and if those civil lawsuits are successful, state courts can shut the clinics down. The measure also includes a provision that will prevent clinics, even if they prevail in court, from recouping their attorney fees from their legal opponents.
"The kinds of people that are going to bring these lawsuits are the people my staff see every day," said Amy Hagstrom Miller, the president of Whole Woman's Health, which operates four clinics in Texas and is suing in federal court to block the law. "They scream at them on the way to work, they know their names, they know what car they drive, and so this isn't abstract to our clinic staff and physicians."
Texas Right to Life is planning to launch a tip line for people to report evidence that the ban has been violated and Seago, the legislative director, also said that he is anticipating that "sidewalk counselors," in his words, and the counselors at pregnancy centers could being involved in the lawsuits as well.
Additionally, the law exposes to the civil damages anyone who "knowingly ... aids or abets" in the performance of abortion after the heartbeat is defected, even as it excludes from liability the woman who received the abortion.
The language is vague but has prompted fears that family members who drive patients to receive abortion or donors to abortion funds that help pay for the procedure will be vulnerable to civil litigation.
Will the law withstand legal challenges?
Seago touted how he structure of the law -- and how it empowers citizens to bring civil litigation -- will make it more resilient to the type of "back and forth" in federal courts that have blocked abortion restrictions in the past.
Typically, when a state passes an abortion restriction, abortion rights advocates bring lawsuits against the government officials -- such as attorneys general or regulatory boards -- in charge of enforcing a criminal or administration punishment and ask courts for orders blocking those officials from enforcing those laws before restrictions go into effect.
By leaving the enforcement of the ban in the hands of private civil litigants, the Texas measure's champions are hoping to deprive their legal foes the opportunity to get a federal court to block the measure before it goes into effect.
At the same time, however, letting Texas move forward with this end-run around Roe nonetheless opens up the possibility for blue cities and states to adopt the strategy for their policy preferences, like enacting gun control restrictions enforced that enforced by private plaintiffs.
Regardless, if Texas is allowed to implement the law, it appears likely that other red states would follow in using the approach to restrict abortion.
"We have already heard from states that are working on drafting some legislation that takes this approach to the enforcement mechanism," Seago added.
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