Texas 6-week abortion ban allows private citizens to sue with unprecedented legal approach

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The measure, signed into law by Republican Gov. Greg Abbott in May and coming into force on Wednesday, prohibits abortion providers from performing abortions once the heartbeat of the fetus is detected. According to opponents of the law, the effective ban on at least 85% of abortions requested in the state, as this point is about six weeks pregnant, before some women know they are pregnant.

The law was passed amid a series of restrictions that were passed by GOP legislatures across the country this year, after the confirmation of Judge Amy Coney Barrett caused the Supreme Court to turn to the right and made it more likely that the court would reduce or reverse it completely Roe against Wade, the decisive 1973 decision that enshrined a constitutional right to abortion before the fetus was viable.

But among those restrictions, the Texas bill stands out for the new approach it takes to reduce the procedure.

Instead of imposing a criminal or regulatory punishment on those who perform abortions after the time of pregnancy, state law created the so-called “right of private action” to enforce the restriction. Basically, the legislature replaced private citizens in filing a civil lawsuit (with the threat of damages or more than $ 10,000) against providers or even anyone who helped a woman access an abortion after six weeks.

“The way the bill is structured encourages the surveillance demands that will haunt abortion providers and those who support abortion in Texas,” Adriana Piñon, a lawyer for the Texas chapter of ACLU, told CNN .

The approach aimed to isolate the law from the type of federal legal challenges that would prevent its entry into force. One such lawsuit, filed by several clinics represented by the ACLU and other groups, is now mired in a complicated procedural dispute that has caused clinics to seek Supreme Court intervention.

The result is that as the legal struggle unfolds, Texas providers may have to decide whether they want to risk costly litigation filed by private plaintiffs seeking damages under state law.

Anti-abortion activists are already preparing to file lawsuits if clinics violate the six-week ban.

“This whole mechanism only works if there is a credible threat to file lawsuits against an industry if they decide to ignore the law,” said John Seago, legislative director of Texas Right to Life, which strongly advocated a ban on abortion. . “So we’ve been working to make sure all these pieces are in place, that if we have reports, that we see evidence that they break the law, we can enforce the law ourselves.”

(After Seago spoke with CNN, a state court issued temporary orders to prevent Seago and her organization from carrying out private enforcement actions against two lawyers and an organization that would help women gain access to the proceedings).

Seago told CNN that the push for the law was motivated in a party by a letter published in October by a coalition of state and local prosecutors across the country who vowed not to enforce anti-law laws. abortion, though Eggs it was overturned.

Although the anti-abortion movement’s previous proposals included civil liability, Texas ’ban is unique in that it is completely structured around this threat. According to the text, the way it expands who can sue under the measure – “anyone” in addition to a government official, is new in the context of abortion, he said.

“One of the great benefits and one of the most exciting things about the pro-life movement is that they play a role in enforcing this law,” Seago said.

Impact on clinics

Advocates for abortion rights say the effect of the law will fall disproportionately on people on lower incomes who will not be able to travel outside the state to receive the procedure.
The average distance an aborted patient will have to travel when the law goes into effect will grow from 12 miles to 248 miles, according to a study by reproductive rights research organization The Guttmacher Institute.

Clinics will have to hire lawyers to defend themselves, and if these civil lawsuits are successful, state courts can close the clinics. The measure also includes a provision that will prevent clinics, even if they prevail in court, from recovering their lawyers ’fees from their legal opponents.

“The kind of people who will file these lawsuits are the people who see my staff every day,” said Amy Hagstrom Miller, president of Whole Woman’s Health, which operates four clinics in Texas and sues in federal court to block the law. “They call them on their way to work, they know their name, they know what car they’re driving, and so that’s not abstract to the staff and doctors at our clinic.”

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Texas Right to Life plans to launch a line of advice for people to report evidence that they have violated the ban, and Seago, the legislative director, also said he expects “sidewalk councilors,” in his words, and counselors during pregnancy centers could also be involved in lawsuits.

In addition, the law exposes to civil damages anyone who “helps or assists” consciously in performing the abortion after the heartbeat is defective, although it excludes from responsibility the woman who received the abortion.

The language is inaccurate, but it has sparked fears that relatives who lead patients to receive abortions or donors to abortion funds who help pay for the procedure are vulnerable to civil litigation.

Will the law resist legal challenges?

Seago claimed how the structure of the law (and how it allows citizens to file civil litigation) will make it more resilient to the kind of “come and go” in federal courts that have blocked restrictions on abortion in the past.

Typically, when a state adopts a restriction on abortion, advocates for abortion rights file lawsuits against government officials (such as attorneys general or regulatory councils) tasked with enforcing a criminal or administrative punishment. courts orders preventing officials from enforcing it. the laws before the restrictions come into force.

By leaving enforcement of the ban in the hands of private civil litigants, Texas measure champions hope to deprive their legal enemies of the opportunity to get a federal court to block the measure before it takes effect.

At the same time, however, let Texas move forward with this final route Eggs however, it opens up the possibility for blue cities and states to adopt the strategy for their political preferences, such as enacting arms control restrictions applied to those applied by private plaintiffs.

Regardless, if Texas is allowed to enforce the law, it seems likely that other red states will continue to use the approach to restrict abortion.

“We have already heard from states that are working on drafting some legislation that will take this approach to the enforcement mechanism,” Seago added.

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