Texas Law is unenforceable

Even if the SCOTUS tosses Roe, the Texas law would still be unenforceable.

No one but a Mother or her fetus would have standing to file a suit in court.

A person would need to meet the rule that, “at an irreducible minimum,” the constitutional requisites under Article III for the existence of standing are that the plaintiff must personally have:

  1. suffered some actual or threatened injury;
  2. that injury can fairly be traced to the challenged action of the defendant; and
  3. that the injury is likely to be redressed by a favorable decision.

The fetus would have to show person-hood and prove that it could have existed on its own outside the host.

The Texas law, S.B.8 (2021), does not create a cause of action in Article III courts, but in the district courts of the state of Texas which are not bound by Article III of the federal constitution but rather Article 5 of the Texas Constitution.

Sec. 8. JURISDICTION OF DISTRICT COURTS. District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body. District Court judges shall have the power to issue writs necessary to enforce their jurisdiction.


I heard a lawyer on TV (How’s that for credible!) state that it’s going to take someone actually filing suit as this new law allows in order for this mess to end up before the Supremes.

My understanding is that, even if true, the law was written not primarily to be enforceable, but to create a chilling effect via nuisance lawsuits.

IANAL but it looks to me that the OP is absolutely spot on - either this law is struck down as unconstitutional, or else the Supreme Court will essentially say that we can now chuck out large chunks of the Constitution and disregard it.

As I understand it, “standing” is written into the bill; it’s a matter of whether the bill is constitutional on those grounds but I can’t see why it isn’t

Indeed. This is basically encouraging the use of SLAPP suits to harass people.

More accurately, the Court will essentially say that we can now decide what is constitutional on whatever grounds we decide, which I think was exactly what the Court was saying whether they realized it or not. Constitutional jurisprudence is breaking down - that is the legacy of this case, as well as others since John Roberts became Chief Justice.

And oh yeah, other states now have a blueprint for anti-abortion legislation. There’s no putting this genie back in the bottle. John Roberts was the only one among the conservatives who might have had an “Oh shit” moment, realizing the power his court has given to conservative authoritarian ideologues. See, the conservatives on the bench, whether they realize it or not, are not only rapidly empowering and strengthening conservative executives and legislatures; they are also weakening the judiciary as an independent mechanism.

Too late, Johnny.


No one has standing to sue another person in Texas for a supposed crime that was committed in say Connecticut.

Thinking back to my 1950’s and 60’s civics classes, isn’t the supreme court the designated final arbiter of (among other things) what is constitutional and un-? That they tended to follow establish precedents and so on was never something they had to do (or was it?) just something that they did because they thought it was a good idea for the sake of continuity of the law or something like that. That is clearly much less of a value to the majority of the justices now.

To be clear, I am far from applauding this change, I think it signals another serious step towards the decline of the rule of law. Unless I’m missing something (which wouldn’t surprise me, please tell me if so) this is another area in our federal government that depended on the good will and common sense of the participants, instead of power-hunger and obsession.

No crimes are involved with this law, it provides a civil cause of action. Furthermore the courts in Texas are bound by the faith & credit clause to respect the jurisdiction of other states.


After reading the GD thread, I think the fact that other states can (try to) copy Texas is exactly why this particular method won’t last.

I’m ready to think that the Court is itching to overturn Roe, overall. I’m not ready to think that they’ll endorse this specific way of doing it, because of the consequences that’ll reach even conservatives.

So a woman who is 12 weeks pregnant gets an abortion in Connecticut or New York, returns to Texas. Who has standing to sue her?



ETA: quote from the TX law itself,

(b) This subchapter may not be construed to:
(1) authorize the initiation of a cause of action
against or the prosecution of a woman on whom an abortion is
performed or induced or attempted to be performed or induced in
violation of this subchapter;

The law itself may not last, but the impact will. No question about it. If nothing else, the SCOTUS has winked and nodded at the anti-abortion radicals all over the country, encouraging waves of new litigation. This will probably push all but the most committed providers out of existence in conservative states.

Just to add on. Generally, the law does not allows any person to sue the pregnant woman. It allows a person (except State officials) to sue the doctor, or, person who aided and abetted the pregnant woman to get/attempt to get the abortion (e.g., someone who paid for it; someone who drove pregnant woman to doctor?, etc.) after 6 weeks (once cardiac activity can be detected).

So basically the deal with this law is,

  • Anybody who argues against the state’s regulation of abortions in any court (federal or state) is responsible for the prevailing party’s legal fees.
  • It is illegal for doctors to provide an abortion in TX without first checking for a heartbeat
  • It is illegal for doctors to provide an abortion in TX after a heartbeat is detected
  • It is illegal for anybody to knowingly aid or abet the provision of an abortion that breaks those rules
    • This includes the insurance company if they pay for the abortion.
    • Doesn’t matter if the person knew the abortion would be illegal, only that they knew it would be an abortion.
  • The woman getting the abortion is herself exempt from being sued by this law
  • The state’s executive officers (prosecutors, sheriffs, etc) are prohibited from enforcing this law
  • Any person is allowed to file a civil lawsuit against any doctor or person aiding and abetting a doctor that violates the above rules
    • Officers of the state are not allowed to file these lawsuits
    • The natural father is not allowed to file these lawsuits
    • Four year filing deadline
  • This person, the “claimant” gets to choose the jurisdiction from any of the following
    • The jurisdiction where the alleged abortion occurred
    • The jurisdiction where the defendant resides, if the defendant is a person
    • The jurisdiction where the defendant is based, if the defendant is a corporation
    • The jurisdiction where the claimant resides, if the claimant is a resident of Texas
  • Nobody can change jurisdiction without consent of all parties.
  • Nobody can throw out the case because defendants have already been sued for the exact same abortion.
  • Nobody can throw out the case because a court in a different jurisdiction found the law unconstitutional

If the doc or aid & abettor loses the case,

  • The court orders them not to perform any more abortions / aid & abet any more abortions in violation of the law
  • The court issues statutory damages not less than $10,000.
    • If defendants can prove they were previously sued for the exact same abortion and already paid the full damages in a previous case, they don’t have to pay damages this time. Still have to pay legal fees per the first bullet point.


Actually, it can be the blueprint for denying a whole host of constitutional rights. It could be used to intimidate people against exercising their rights to free speech, stop anti-discrimination laws, and guns (wouldn’t that blow the right wing’s goddamn minds). So far, since its just women (mostly poor, non-white women in the minds of the legislators) it’s no big deal. But this kind of legislation is specifically drawn to avoid federal courts from enforcing constitutional rights. Which opens the door to even more abuse. Hell, instead of abortion, make it “voting for a Democrat” and Texas can accomlish what they really want.

What I want to know is how this intersects with HIPAA.

Whether or not someone had an abortion is definitely PHI, and shouldn’t be available to the general public to determine whether to sue someone with.