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Dystopian Texas Abortion Law Written to Make it Hard to Challenge Legally

Under cover of darkness Texas passed the most draconian abortion law since the passage of Roe v. Wade nearly 50 years ago. SCOTUS just refused to act, so the law is in place. The law bans abortions after a fetal heartbeat can be heard – six weeks after conception. There are no exceptions for incest or rape. Statistics show that over 90% of women seeking an abortion first seek medical help later than six weeks of pregnancy. This law totally upends Roe’s current deadline of “after the second trimester” of pregnancy. So it can be expected that Planned Parenthood or some other abortion provider or abortion seeker will immediately file a lawsuit to prevent its enforcement right? They can’t.

States are immune from suit so you can’t sue the State for the mere passage of the act. Normally what happens is that a plaintiff complaining of the law would sue the State official in charge of enforcing that law. For example, the lawsuit filed in Roe v. Wade named Henry Wade, the District Attorney in the Texas county where Jane Roe lived as the defendant. This new law provides for no government enforcement. There is no State official in charge of making sure abortion providers are complying with the law. The law includes a first-of-its-kind provision that instead allows private citizens to bring lawsuits for damages of up to $10,000 per abortion against – NOT THE PATIENT – but anyone who “aids or abets” anyone getting an abortion after 6 weeks. There is no definition of what constitutes “aids or abets” so that could include a family member who gives advice favoring an abortion to a potential patient; the taxi driver who takes her to the clinic; a school nurse or guidance counselor who gave the patient a pamphlet about an available abortion clinic. But the real target are the clinics and their funders.

What makes the law particularly disturbing are some of the details of who can bring a suit and what they can get:

+ You do not have to have any connection to the patient

+ You can sue even if you don’t live in Texas

+ While the lawsuit must be filed in Texas, you can file it in the county where you live as opposed to the county where the defendant is or where the patient lives. This would force clinics to defend lawsuits hundreds of miles away from where they are. The law provides that venue if proper when filed cannot be changed for any reason.

+ The defendant does not have to know that the abortion was being performed after 6 weeks of gestation. So if your daughter lies to you and says she is 5 weeks pregnant when she knows she is actually 7 weeks pregnant and you take her to a clinic – you can be sued and you will lose.

+ If the plaintiff wins the lawsuit they can get all their legal fees and costs paid in addition to the $10,000 award. If a defendant wins, they do not get back their legal fees and costs

So a clinic will now have to wait to be sued by a private citizen in order to have a valid attack on the lawsuit. Meanwhile, the law remains in effect and Texas abortion clinics have already said that they will abide by the law while it remains in effect. What else can they say?

This is a desperate time for women in Texas. In one fell swoop, the State had ended the protections of Roe v. Wade and left them with no recourse if they need or want an abortion except to leave the State; for many that’s an economic and physical impossibility. Rape victims will have to carry their attacker’s child and deliver the baby; even if the rapist was a family member. A young girl who had sex at 15 will have her life upended as she will be forced to give birth to that child. A woman whose medical condition makes it difficult or risky to carry a child to term will not be able to get an abortion unless a doctor declares it “a medical emergency,” the one exception permitted by the law.

The full text of the law can be found here: https://legiscan.com/TX/text/SB8/id/2395961

One can expect that other Red states will draft and file similar laws soon enough. SCOTUS which refused to take action against this law (BUT HER EMAILS!!!) is set to hear a suit brought against a Mississippi law that bans most abortions after 15 weeks. That case could directly overrule Roe v. Wade. But in the meantime, the tricky dangerous language of this Texas bill may have undone Roe in a much more challenging and permanent way. Lots of laws create private causes of action to enforce public interests, including much of the cases brought in the areas of civil rights and in employment law.

So any attorney challenging a lawsuit brought against their client for “aiding or abetting” an abortion will face an uphill battle to get around the law’s provisions. That lawsuit itself could go up to SCOTUS which could take a decade or more. The law could remain in place in the meanwhile unless an injunction is granted against it. And since the plaintiff can pick the county where to bring it, if they file it in a deep Red county no judge will enjoin it.

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