So, is it fair to say that abortion after 6 weeks is effectively unobtainable in Texas right now (I was going to type “illegal”, but it’s still legal, just prohibitively expensive). And, even at 4 or 5 weeks, nothing would stop some group from suing with the claim that it was really six weeks and forcing the doctor/clinic to spend money in court, right?
Can out-of-state clinics get sued for sending abortion pills to residents of Texas?
Sorry for the double-post, but another legal question came to me – if some doctor or clinic decided to take the risk that the law would be overturned and performed abortions after 6 weeks tomorrow and got sued, and then the law was overturned, would they be in the clear, or could they still be liable?
The difference is that the kidney is you… it has the same DNA as you. Just like your heart and eyes.
The baby is not “you.” Different DNA. It’s not you.
I would like to add my voice to those pleading for this to be about the Texas law and not just another abortion thread.
I apologize in advance if someone else has raised this point. How can a random person entering into such a lawsuit have standing? I thought that was a fundamental principle of tort law.
That’s one of the many weird things about this law that seem like a huge Pandora’s Box to me. If they can do this with this law, who knows what many other things can be done in the future with similar laws?
I think the law defines standing in a way that would let anyone sue a doctor, clinic, or pregnant woman, but I’m not positive.
The law says they do. “Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action…”
My understanding is that the pregnant woman can’t be sued under this law. That’s one of the tricks, which would normally be worthy of no more than an eye-roll but is now being treated seriously by the courts. They’re trying to say it doesn’t affect a woman’s right to choose because it doesn’t make anything illegal for her or place any procedural burdens on her, just on everyone around her.
I need to study the law more, but something immediately that jumped to my mind is why couldn’t more liberal minded states use laws like this to effectively make private gun ownership almost impossible? It wouldn’t be illegal, but say, operating a gun store or something could be made extremely hard to do if you setup a weird tort system like this that could be targeted at gun sales.
If this stands, they probably could. They don’t really want to, of course. Maybe the direct mention of the right to bear arms would be a bigger hurdle compared to the indirect right-to-privacy that Roe relies on.
I would bet this is the case since the 2A is specifically articulated in the US Constitution, and abortion is not.
At some point there will be a test case where someone says the TX law violates a right to privacy guaranteed under Roe v Wade, and SCOTUS will take that opportunity to say “yeah, about that so-called right to privacy…”
I bet some of these SCOTUS justices sleep just fine at night telling themselves that they’re doing a good thing by enraging the public enough to prompt Congress to deal with the issue explicitly. Cowards.
Agreed, SCOTUS could use that as another way to overturn Roe.
I could see it being used that way. The whole too smart by half thing that they have come up with is that, yes a woman has a right to an abortion, so you cannot sue her. But her friend does not have a right to drive her to the clinic and nobody has a right to make a living providing abortions. So when you sue them, you are not denying them any rights. And as each individual lawsuit does not prevent any woman from having an abortion, the theory goes it is a-okay.
The problem with that is evident. You could pass a law that anyone could sue a website operator, computer company, or pen and paper store from doing business with a Democrat. These companies have to right to do business with a Democrat, so my suit isn’t taking away anyone’s free speech or press rights. You could do the same with guns, or jury trials, or warrantless searches.
Which is why I am opposed to this law even though I believe Roe should be overruled.
I would guess that it is effectively illegal right now. Scotusblog has a good write up on the legal whack a mole game the state is playing. It argues that the Court cannot invalidate the law now because there is no case or controversy. If a woman wants to get an abortion at 10 weeks, the state’s response is “go right ahead; we aren’t stopping you” so you can’t sue us.
Oh, but this pro-life activist said he will file suit against anyone he finds violating the law. Yes, but has he? What case would you like us to rule against him in? Oh, and look, he just announced today that he won’t be suing under this law after all. So you have no defendant to go after here who is claiming to harm you.
So there might be some posturing here. Maybe an abortion clinic takes donations to get sued to be a test case. Then the pro-life group sues and claims (truthfully) that this will be the only lawsuit they will file. Further the doctor has no case because he has no constitutional right to perform abortions, even if he could stand in place of the woman, all she has to do is go to a different doctor who they promise not to sue (but someone else will, but I cannot control that).so how exactly am I, Plaintiff #1, burdening your right to an abortion? Rinse and repeat with plaintiffs one through one million.
ETA: I assume it would apply to out of state providers. They would have the requisite minimum contacts in TX to be sued.
Just a quick question for the legal eagles out there, is there any other legal precedent for a law that allows individual to sue over something that doesn’t affect them directly?
The linked article says that this laws formulation would protect it from legal challenges by making individuals rather than the state that is enforcing it. But it would seem to me that throwing out the entire bedrock notion of standing would be an even bigger push.
As for whether this methodology could be used against gun rights, the current supreme court has shown no particular need to be consistent about legal reasoning when it comes to supporting partisan aims. As an example compare their decisions on elections. When it came to California’s financial disclosure requirement, the court ruled that even though it didn’t specifically prevent money as speech, it would have an effect of discouraging it, and so was unconsitituional. Meanwhile when it came to Arizona’s voting rights laws, so long as it they didn’t explicitly ban anyone from voting it didn’t matter if the effect discouraged voting.
So I would expect them to have no problem upholding these laws when they match conservative idiology but over turning them when they match liberal idiology.
Right–so to me the point made by @HMS_Irruncible that it couldn’t be used to neuter the 2nd Amendment (or any portion of the Constitution that protects individual rights–I chose the 2nd Amendment because of its positioning in the left/right culture wars as an example) doesn’t seem particularly valid. If the court actually finds this civil litigation type enforcement valid, there is really no protection for any constitutional rights. It’s much bigger than just the abortion issue. I don’t really see a way the court would rule “well, it can’t be used to defang the 2nd Amendment or 1st Amendment because those are explicitly stated in the constitution”, there’s a huge amount of constitutional jurisprudence that exists through years of court precedent and lack black letter law expression in the constitution. It is unlikely this court seeks to overturn all precedential law other than an extremely narrow textual reading of the constitution, at least as evidenced by the way they’ve actually ruled on other cases.
Frankly I would imagine even a court that wants to strike down Roe, would do so in one of the cases more directly attacking Roe (I think there is one out of Mississippi), this Texas law essentially establishes a precedent that a state can de facto criminalize anything it wants if it provides for enforcement through private-party civil litigation and a State-paid “bounty” system. “It’s not illegal to stop blacks from voting, but we are giving a $10,000 bounty to anyone who files a lawsuit that will infringe on a registrar trying to register a black voter.” You could even make the argument this line of laws would neuter the entire authority of the Federal courts.
Like I say, it seems like this sort of law is open to abuses of far greater constitutional concern than any singular issue (like abortion.)
Yes, I fully agree with you. I don’t see the distinction or any principle of law that textual rights directly stated are somehow “extra” rights in our country. The best I could see is that if they are in plain text, it would be nigh impossible to judicially remove them. I mean, I have a right to a jury trial in capital cases. No judge on the right or left could disagree with it because it is right there staring them in the face, while if it is not so clear, there could be disagreement, but that doesn’t change the right.
But even if we went on only unenumerated rights, what is to stop a state from using this private suit/civil bounty for gay marriage and even private sodomy? It is just a bad idea all around, and endangers all of our rights to do an end run around Roe.
The super strong standing requirements that you are likely familiar with from the Supreme Court are very tight (well, except when it comes to abortion) but each state can have its own requirement for standing. In TX, one of the ways you get standing is that a law is passed giving you standing, which is what was done here.
From the NY Times article I posted above:
In the abstract, allowing citizens to help enforce the law is nothing new. Many states have so-called citizen suit or private attorney general provisions that allow people to help enforce a range of laws and rules governing consumer and environmental protection, government transparency and more. The federal government authorizes citizens to help bring certain fraud claims on behalf of the United States — and allows those citizens to share in any damages that the government receives. The critical point in both of those contexts is that citizens are supplementing government enforcement.
Thanks, I must have some how missed that.
It would seem to me that in those cases you could find someone who can claim at least some degree of harm, for example add someone living down stream of a polluter to the Sierra clubs legal case, or say that as a voter I have an interest in knowing what my government is doing. But I am really having a hard time seeing why my driving my friend to an abortion has an effect on someone three towns over who doesn’t know either of us.
But I’m not a lawyer so what do I know?