‘It is evidence that tends to show that the court is inclined to substantially cut or overturn Roe, but that’s not conclusive evidence, ”Cornell University law professor Michael Dorf said of the judges’ rejection early Wednesday to act on a petition to freeze Texas law.
The court’s silence is difficult to interpret, given how different the case is from many other recent abortion battles. The case may well be stuck on technical and procedural issues, rather than because of something directly related to the Court’s interpretation of Roe v. Wade, lawyers said.
“That the court was unable to fix this late at night does not really say much,” said Ed Whelan, a senior colleague at the Conservative Ethics and Public Policy Center, arguing that it is not an indicator of what will occur when judges review Mississippi’s 15-week abortion ban in a case Dobbs v. Jackson Women’s Health Organization, it is expected to decide the fate of Roe this fall. “I do not think this question will have any particular bearing on what the court does in Dobbs,” he said.
Unlike six-week abortion bans passed in more than a dozen states, all of which have been blocked by courts, Texas law has so far survived legal challenges because it made the public an enforcer instead of a state. People who successfully bring suits win $ 10,000 in damages, and lawsuits can be filed against others than the patient, e.g. A friend who borrows money to pay for an abortion or gives a trip to a clinic.
“Anyone who is perceived as an aide to an abortion now has a bounty on their head,” said Planned Parenthood President Alexis McGill Johnson. “The state authorizes vigilantes to enforce a bad law. ”
Defendants in the challenge of the law from abortion providers in Texas include a county judge and attorney who would handle cases brought by private citizens. But preventive litigation against judges is rarely allowed because of immunity that Congress has bestowed.
“There is a kind of evil genius in structuring the law in this way because it involves all sorts of complicated procedural obstacles to getting relief,” Dorf said.
The patient receiving the abortion cannot be sued. Nor do people who refer a patient to an abortion provider in another state or help the patient take the trip. But the lawyers representing the clinics say it will still have a cooling effect on doctors who will be more reluctant to perform the procedure, and patients are afraid to seek one even before six weeks of pregnancy.
“It creates a situation where the burden of having to defend oneself, getting lawyers, even if the defendants have to win every single case – having to go to state courts in Texas’ 258 counties – it only threatens to stop the provision of abortion throughout the state, “said Marc Hearron, a senior adviser to the Center for Reproductive Rights and the lead lawyer behind the challenge.
Hearron also argues that the law has contributed to incentives for people to sue without financial sanctions if they do not prove that an illegal abortion was performed, but at least $ 10,000 reward if they succeed.
“The way Texas law structured this law was to lure as many lawsuits as possible and make it essentially risk-free,” he said.
The ACLU, one of the main groups challenging the law, said they are not yet aware of cases brought in the state.
For now, advocates are keeping an eye on both what the Supreme Court is doing next and how quickly other states are copying Texas’ strategy.
Although the judges could still freeze Texas law to allow legal challenges to play out, abortion opponents seem brave.
“This is an innovative idea that puts the power of this topic back where it belongs, with ‘We the People,'” said Kristan Hawkins, leader of the Students for Life Action group, which lobbies dozens of state capitals. “We see this as a tool in future model legislation.”
Abortion rights groups that monitor state policy expects Arizona, South Carolina and Ohio to be among the first states to replicate the law, but says others that have previously passed six-week bans — including Kentucky, Mississippi, Alabama, Arkansas and North Dakota — can follow.
Although the Texas law is new, in 1997 Louisiana lawmakers enacted a measure that gave women undergoing abortion the right to sue their abortion providers for unlimited damages as a result of the procedure.
A federal judge blocked this statute and a 5th Circuit Court of Appeals panel upheld the injunction. But in 2001, the Court of Appeal ruled 2-1 that the suit used to solve the challenge was unconstitutional because the named defendants – Louisiana’s governor and attorney general – were not involved in law enforcement and had immunity under the 11th Amendment.
The Texas statute is even broader as it sanctions the enforcement of just about everyone – an approach sometimes called “private attorneys general.” Such laws have existed for centuries, but grew in popularity in some liberal circles in the late 1990s and early 2000s as a means of tightening up the enforcement of environmental and labor laws.
“This mechanism does not in itself have an ideological basis,” Dorf said. “In these contexts, it was not so much an effort to prevent the potential objectives of the law from conducting a prior trial, but an attempt to get resources from the private sector to bear.”
Hearron and other attorneys representing clinics warn that if Texas law holds up in court, other states could use the same strategy on a wide range of issues other than abortion – from Covid precautions to restrictions on protests.
“If a state can simply outsource its enforcement authority to private citizens and deputies them to sue people for simply exercising a fundamental right, then it would allow any state to attack any individual right,” he said. “You can spin hypothetically after hypothetical. So everyone from all sides should be extremely concerned and hope that Texas’ cynical structure for this law fails. “
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