I’m not sure that’s true. We have had other cases that could have ended Roe, but SCOTUS didn’t bite. One thing I have learned over this last election, is that Republicans have used abortion as the carrot on a stick to keep prolife Christians on the hook.
As a Prolife Christian, I had to take a step back and look at who is actually protecting life. It ain’t the Republicans.
What’s going on in Texas isn’t about the pre-born. It’s about control, plain and simple. I am really conflicted here. Because I will always believe in the human rights of the pre-born. But I’ve never supported criminalizing abortions either. What they are doing here is barbaric, and not at all prolife.
I saw a post on facebook today from the US DOJ, they are looking into what they can do here. This isn’t over. Not by a long shot.
In short court orders are the exception to the privacy rule. Usually medical record subpoenas are not court orders and the record custodian needs “satisfactory assurances” the patient was notified and is okay with the release. Usually the patient will have signed off on the subpoena. In this kind of case the patient will probably ask the court for a protective order or something, otherwise the records custodian (defendant) will require a court order.
(This quoted post was written before I understood that the present law has people suing the providers and not the woman.)
Surely judges aren’t going to go off subpoenaing people’s medical records just because someone else THINKS they had an abortion and are suing as a result? That seems absolutely crazy to me.
Also… doesn’t this new law run afoul of whatever legal principle says that you can’t be tried or sued for doing something that’s explicitly legal?
That’s what the law calls for, report thy neighbor, raise $10K for the state. I think a responsible judge would throw out frivolous fishing expeditions and if it comes to the records, protect the woman’s name. But hey, it’s the wild wild west out there (pun intended). Really only a few parts of the medical record have any relevance. Did a woman get an abortion, did someone check for a heartbeat, was there a heartbeat. Everything else can be censored out by the judge or a special master, and a gag on other PHI can be put in place at the judge’s discretion.
That is a principle in criminal law. People get sued for doing legal things all the time, like contract disputes or divorce.
But as far as ex post facto, I do think one provision violates that:
Sec. 171.207
(e) Notwithstanding any other law, the following are not a defense to an action brought under this section: […] (3) a defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this subchapter;
But what if they don’t really think it? What if some disgruntled person sues me and says I aided and abetted someone I don’t even know, and they didn’t have an abortion? How do the two of us, total strangers, negotiate that? It seems like the burden of proof is on us to expensively prove a negative.
The claimant would bear the initial burden of proof, I think by a preponderance of evidence, that
you knowingly aided and abetted the performance or inducement of an abortion, AND
the abortion was performed or induced by a physician who either
a. did not first determine whether a fetal heartbeat was present, OR
b. determined that a fetal heartbeat was present
Thanks for this very nice summary. A couple of questions if you have the time
How does this law suit affect people who facilitate an abortion outside of the state, say I live in Texas and send a check to my adult daughter in Maryland who gets and abortion, or I drive my friend to New Mexico to get one, would I be liable?
Who gets the $10K? I thought that it was the person who brought the suit, but some other post made me think it might be that state.
I think I know this one, but can you confirm that while you don’t have to pay the penalty more than once for any given abortion, muliple people (say the doctor, the Insurance Company, the escort, the receptionist, the Uber Driver etc.) could be charged 10K each for the same abortion.
Also as a possible correction
only applies in the case of rape or Incest according to my reading of the statute.
Given this, wouldn’t it be possible for an anti-abortion group to have every member sue an abortion provider, and thereby drive them out of business through legal fees?
I’m not a lawyer but I’m pretty sure #1 is no liability, because liability for aiding and abetting is specific to abortions done in violation of the rules for doctors licensed in Texas.
I’m not 100% sure who gets the $10k. It is a statutory damage, and being a damage implies that it goes to the victim. But the claimant didn’t suffer any form of harm whatsoever except possibly their legal fees, which are provided for separately from the $10k. An early provision in the law says that the state has a compelling interest in protecting the unborn child, so I assume the money goes to the state which has been deprived of said potential citizen.
Assuming that the real purpose is to intimidate, and not actually hold up in court, then the Texas law may successfully intimidate the clinics into closing. Even if they only closed for a few months but then reopened, enough workers may have been driven away or decide “this job isn’t for me” that it would be hard to continue operations as before.
Well, Planned Parenthood, Whole Woman’s Health, etc do a lot of things aside from abortion. But yes, the law is already in effect and clinics have already stopped performing abortions.
Of course they will successfully intimidate clinics into closing – the bill was written with providers in mind. They’re the ones who will have to fight legal challenges day in, day out. Even if they want to continue providing abortions, they might not have the finances to do it for long.
The Planned Parenthood in Lubbock, TX is a telling example. Before HB8, the city passed a local ordinance to the same effect. Private citizens could sue local docs, and within a month Planned Parenthood stopped providing abortions.
And apparently that was the only abortion clinic within like a 300 mile radius. RIP if you want an abortion and live in West Texas.
Stick an ad hoc abortion clinic in every post office and federal building in Texas. Probably wouldn’t pass jurisdictional muster, but it’d be fun to watch all the anti-abortion heads go all 'splodey.
The madness will not stop with abortion. Just look at the laws that ban mask mandates. This is a political party that is behaving like a hostile tribe, and these laws are part of identifying who is part of the tribe. There can be no moderation as far as they are concerned, which explains everything from radical abortion laws to banning mask mandates. The actual outcome of these laws (death) means absolutely nothing; it’s just another tribal ritual, like walking on hot coals or ‘land diving’, or burning witches.
This is what awaits America if (more likely when) they succeed in dismantling liberal two-party democracy, and we’re very close to that time, I’m afraid.
There are people in the middle. And to them, going after a nurse, when there’s a 51 percent chance she assisted with a abortion, is not a good look. If Amy Comey Barrett wants to uphold Roe, because of being a conservative supporter of precedent, this is her case.
Maybe it’s more likely that Row will be overruled 5-4. But either way, this Texas law seems to me a GOP own goal. They took away the focus from whether a fetus deserves protection as the weakest among us to whether we want a bounty hunter model for law enforcement. I don’t think the bounty hunter model will be popular.
Explain to me how the Texas law gets around the question of standing? AIUI, to file a civil lawsuit you have to have been injured in someway. Why doesn’t the TX plaintiff need to show how they were impacted by some stranger’s abortion?
It’s moot – providers aren’t going to operate in the state. Nurses aren’t going to provide abortions if there’s not a clinic open that will perform the procedure.
It’s not an own-goal because they are going to redraw districts so that they include people who vote R 70-90% of the time. They won’t have to worry about “the middle”. They can be a political minority and still have the power.