July 29, 2021

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Texas Plans to Use Citizens as Anti-Abortion Enforcers

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The new Texas anti-abortion law signed into law recently by Gov. Greg Abbott is one of the strictest in the nation.

It calls for a ban on abortions if a fetal heartbeat can be detected – as early as six weeks into a pregnancy – and puts in place a legal wrinkle not seen in other states that have passed similar legislation: Private citizens can sue abortion providers for violating the law.

Six-week bans have been passed in other states, but each has been held up in court as a violation of Roe v. Wade, which guarantees the right to an abortion until a fetus can live outside the womb – usually around 23 weeks.

The six-week ban is based on the approximate length of time during a pregnancy for a fetal heartbeat to be detected.

The Texas law is scheduled to go into effect Sept. 1, and, according to the New York Times, its opponents are facing a difficult challenge in countering it before that date because of the law’s unique new wrinkle. “(I)t is hard to know whom to sue to block it,” ” the Times said, “and lawyers for clinics are now wrestling with what to do about it.”

Citizens, not State Officials, Are Enforcers

Ordinarily, when a state passes a law, enforcement is left to government officials. If clinics wanted to challenge a law’s constitutionality, that is who would they sue.

But Texas has eliminated that traditional litigation path by, in effect, deputizing citizens to be the enforcers – and not just Texas citizens, but those anywhere in the U.S. And it provides an attractive enticement: Anyone who can prove that a clinic has broken the law may receive up to $10,000 per illegal abortion.

And not only can a clinic be sued; so can anyone who assisted in the illegal abortion.

“If the barista at Starbucks overhears you talking about your abortion, and it was performed after six weeks, that barista is authorized to sue the clinic where you obtained the abortion and to sue any other person who helped you, like the Uber driver who took you there,” Melissa Murray, a New York University law professor, told the Times.

“It’s a very unique law and it’s a very clever law,” Josh Blackman, a constitutional law professor at South Texas College of Law Houston, told 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.”

Texas Right to Life has lauded the bill as “a historic step in the battle to protect Life.”

Questions of Legality and Constitutionality

So, is it legal to simply deputize the populace to enforce a law?

Howard Wasserman, a law professor at Florida International University in Miami, told the Times that some state statutes do allow it, but in a far more limited way. California’s consumer protection law, for instance, allows any individual to sue a company for disseminating false information, but that availability exists as a supplement to state enforcement.

In Texas, it is in lieu of state enforcement, a development that has attracted the ire of 370 lawyers who signed a letter opposing the new law, calling it “an unprecedented abuse of civil litigation to advance a political agenda.”

As it stands, it appears that abortion providers in Texas may have little choice but to wait until after September 1 and deal with the new legal challenge from a defensive position.

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