Why not attack the legal system while you’re at it?
Texas lawmakers — pushing to drastically restrict abortion access — have included language in a priority bill meant to make it harder to block the law from taking effect and easier to sue abortion providers.
The provisions seem intended to reshape the legal landscape, while many federal courts stop restrictive abortion laws that have passed out of conservative statehouses.
Proponents of the bill told lawmakers its “unique drafting” could make it the first of its kind that can’t be held up in the courts before it takes effect. But legal experts and abortion rights advocates say the proposals amount to a gambit meant to drive abortion clinics out of business.
“Regardless of how you try to dress up an unconstitutional bill, it is still unconstitutional,” said Elisabeth Smith, chief counsel for state advocacy and policy at the Center for Reproductive Rights.
The proposed bill would strip Texas officials of their typical enforcement role — and open the door for any Texan to sue providers they thought weren’t complying with state abortion laws. By pushing enforcement to the civil court system, anti-abortion activists hope to make it harder to sue state officials to stop an unconstitutional law.
The bill also tries to give state actors immunity from lawsuits.
Versions of the law have been passed in other states and have all been blocked by the courts, said University of Texas at Austin law professor Elizabeth Sepper.
What’s different in Texas “and what the Texas Legislature is sort of pinning its hopes on — are the procedural maneuvers,” she said.
SB 8 would let anyone in Texas sue an abortion provider if they believe they violated state laws. The person would not have to have a connection to someone who had an abortion or to the provider.
Someone who knowingly “aids or abets” others getting abortions prohibited under state law could also be hit with lawsuits, according to a draft of the bill.
Advocates of abortion rights say the provisions would upend “the judiciary’s check on the Legislature” and could leave doctors — or even families of those who receive abortions — to face harassing and frivolous litigation.
Legal experts also said provisions in the bill represent a big break from how the law normally works.
“It’s an extreme departure from current law that someone [doesn’t have] to be connected to a problem in order to sue,” said David S. Cohen, a law professor at Drexel University’s Thomas R. Kline School of Law.
“It really opens up for almost endless liability, which is one way that the anti-abortion folks, including the Texas Legislature, strategize to shut down abortion clinics,” he said.
Smith said the idea that anyone could sue abortion providers makes a “mockery of the legal system, which requires the person suing to have actually sustained a harm that provides the basis of the lawsuit.”
SB8, one of Dan Patrick’s priority bills, is one of many that have already been passed out of committee. It’s safe to say that most if not all of these bills will be passed because there’s nothing that can stop them other than time or the Republicans themselves choosing not to proceed for whatever the reason. From there, it’s a matter of what the courts will do. We know that Chief Justice John Roberts is a stickler for who does and does not have standing to file lawsuits, but we also know that there are five other SCOTUS justices who don’t believe in reproductive freedom, so it’s anyone’s guess what happens next. I see no reason to doubt that some, probably most, of what’s in these bills will survive. I sure hope I’m wrong about that.