Arvanitakis on American politics: Texas has not got what it wished for with its abortion laws

| September 25, 2021

Earlier this month, the state of Texas introduced a new law that limits reproductive rights. The law bans abortions upon the detection of cardiac activity in embryos – which usually occurs after six weeks of gestation. This is before most women even know they are pregnant.

Known as Senate Bill 8 (or SB8), it is aimed at anyone who performs, “aids or abets,” or intends to aid or abet such an abortion. Interestingly, ‘aid or abet’ is not defined at all in the law. While ‘Intent’ has a legal definition – for example, the ‘intent to distribute illegal drugs’ – there are few cases where a mere intention creates criminal or civil liability, as it does under this law.

But what makes SB8 different is that the enforcement mechanism involves civil lawsuits, rather than criminal prosecution.

That is, rather than enforcement undertaken by government officials, it effectively aims to empower ordinary citizens — both withing and outside Texas — to sue clinics and others who violate the law.

The law awards citizens at least $10,000 per illegal abortion they successful sue for.

Texas Right to Life, the state’s largest anti-abortion group and a driving force behind the law has launched a website to receive tips about suspected violations. A spokeswoman for the group has noted that the website is mostly symbolic because almost all abortion providers seem to be complying with the law.

The Supreme Court

One of the reasons that SB8 was established via the civil lawsuit pathway is that it limits the ability of its opponents to argue that it is unconstitutional.

This The Biden Administration, through the Justice Department, discovered this when it asked the Supreme Court to block the law. The Court declined to do this, noting the unusual nature of the law was “complex and novel” and raised “antecedent procedural questions” that made weighing the law’s constitutionality a challenge. In its judgement, the Court stated:

“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit… In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”

In other words, the Court is uncertain whether SB8 does directly challenge Roe v. Wade, the 1973 landmark legal decision striking down a Texas statute banning abortion. Roe v. Wade held that a woman’s right to an abortion was implicit in the right to privacy protected by the Constitution’s 14th Amendment.

The Court was split 5-4 with dissenting conservative Chief Justice John Roberts, siding with the Court’s three liberal justices.

The decision was not clear cut and did leave open the option for abortion providers to challenge the Texas law. So watch this space as it will return to the Supreme Court in the not too distant future.

The strange precedent

The legal workaround represented by SB8 is indeed impressive, and was described by the New Yorker’s Jeannie Suk Gersen as follows:

“That world-bending move simultaneously accomplished a legal work-around to prevent federal courts, including the Supreme Court, from stopping an unconstitutional statute from going into effect—a scheme so clever that, once you’ve seen it, you wonder at how it hasn’t been attempted before.”

What has also emerged is speculation that the unique legal structure of the Texas law might just as easily be applied to other areas in which lawmakers want to curtail specific rights that have been guaranteed by court rulings.

For example, some have suggested that some states that disagree with the Supreme Court’s rulings on handgun bans might create a private right of action against gun dealers who sell them. Progressives, for example, may also look to circumvent courts by allowing individual citizens to sue large polluters or, ironically, doctors who fail to support a women’s right to abortion.

The point would not be to win an argument over the constitutionality of a statute, but to compel compliance with it anyway.

The twist leaving Texas conservatives frustrated

Just last week, a doctor from San Antonio performed an abortion in direct defiance of the Texas law.

But the openness of SB8 — allowing anyone to file suit — has resulted in a first test case that was directly aimed to be unfavourable to the intentions of the cause

As a result, the San Antonio doctor is being sued by two plaintiffs with motivations that directly confront the intention of the law. Both are pro-reproductive rights but driven by different motivations.

The first ‘plaintiff’ is Oscar Stilley, a former lawyer who lost his law license after being convicted of tax fraud in 2010. Stilley wants to force a court review of Texas’ anti-abortion law, stating:

“I don’t want doctors out there nervous and sitting there and quaking in their boots and saying, ‘I can’t do this because if this thing works out, then I’m going to be bankrupt.”

The second plaintiff is Felipe N. Gomez from Chicago who wants the law to be declared unconstitutional. In his view, the law is a form of government overreach. Gomez is also critical of Texas Republicans who are aiming to curtail reproductive rights while simultaneously arguing for people’s right to ‘vaccine choice.’

Rather than celebrating these lawsuits, Texas Right to Life, is increasingly frustrated. John Seago, legislative director of the group recently stated:

“Neither of these lawsuits are valid attempts to save innocent human lives… Both cases are self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes.”

No one is sure where this will end. For progressives, there are concerns that it is an attack on choice and threatens Roe v Wade. For conservatives, there is an increasing recognition that such a law will blow back on them.

In other words, once you let this genie out, you may not get exactly what you wish for.