By: Joseph Cunningham
In an unprecedented statutory scheme, the Texas Government has effectively banned abortions and deputized its citizens to track down and punish abortion aiders. Texas’ S.B. 8 bans any abortion once a “fetal heartbeat” has been detected, which usually occurs around six weeks into a pregnancy. Anyone with evidence of any individual aiding in the procurement of the abortion to sue that aider for a minimum of $10,000 in damages. The Department of Justice (“DOJ”) initiated a suit against the State of Texas seeking to declare the law invalid and permanently enjoin the State of Texas and its citizens from enforcing the law.
While many states have attempted to increase abortion restrictions over the years, Texas’ S.B. 8 seems to be the most aggressive to date. The law requires abortion providers to make a good faith effort to find a “fetal heartbeat,” which is a non-clinical term the legislature uses to describe “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac,” which includes electrical activity in the growing cells that begins around six weeks into a pregnancy and during a stage of development in which the cells do not have an actual heart. Once this “fetal heartbeat” is found, the abortion provider cannot legally perform the procedure; if they do, they are liable for civil damages. There are no exceptions for rape or incest, but there are exceptions for medical emergencies. However, the law does not specify what constitutes a medical emergency, which leaves it to a doctor to decide in the moment if they think the circumstances meet the exception. Additionally, anyone who aids and abets the abortion is also liable including an Uber driver who drops the patient off, family members who loan the patient money for the procedure, and even religious leaders who give spiritual advice on the circumstances. Further, people who did not act to help the abortion, but still intended to do so are liable. Only the patient themselves cannot be sued. Importantly, it is not the state who enforces this ban, the courts have regularly held that states cannot put undue burdens on a woman’s choice to seek an abortion. To get around this the bill effectively deputizes private citizens to open suits against aiders and entitles them to a minimum award of $10,000 and legal fees if their suit proves that the banned abortion took place and that the defendant aided it in some way. Surprisingly, if the suit fails, the plaintiff does not have to cover the defendant’s legal fees.
In response to this law, a Texas anti-abortion group called Texas Right to Life set up a whistleblower website that asked for anonymous tips on how S.B. 8 had been violated, which would be used to help Texans build cases. Quickly, activists flooded the site with fake reports to slow down the system and make gleaning useful information from the site more difficult. On September 3rd the website’s hosting service GoDaddy ceased hosting it, citing violations of its terms of service primarily regarding the harvesting of third-party personal information without that party’s express consent. The site was then picked up by Epik and taken down again on September 4th for third-party privacy issues. The tip service remains down while the organization looks for a host.
Meanwhile, abortion providers across Texas have ceased giving abortions entirely due to fear of the unlimited liability they may face. S.B. 8 makes over 85% of prior abortions illegal and limits them to a developmental period when many women do not even know they are pregnant. Also, three out of four abortion patients nationally are poor or low-income and have difficulty paying for and getting to the procedure, let alone covering childcare costs. The Supreme Court was presented with the opportunity to block the law while pending litigation worked through the courts but denied doing so due to novel procedural questions.
The DOJ initiated a suit against the State of Texas seeking to invalidate the law and protect healthcare providers’ and patients’ constitutional rights from S.B. 8 lawsuits. The DOJ’s suit is perhaps the best shot at invalidating the law due to the difficulty in challenging these types of laws before enforcement because the state has no enforcement role, and you cannot identify the citizen litigants until they begin their suit. The DOJ’s foundational argument is that based on common law principles from Roe v. Wade and Planned Parenthood v. Casey, the state can’t interfere with a woman’s constitutional right to decide on abortion pre-viability and her decision must be free from undue influence from the state. Also, under Manhattan Cmty. Access Corp. v. Halleck, the DOJ argues that private citizens have been turned into state actors because they will be exercising powers traditionally reserved to the state. S.B. 8 gives individuals the unsupervised authority to police violations of the law and engage in conduct that would be unconstitutional if engaged in by the state.
S.B. 8 weaponizes the judicial branch against civilians attempting to practice their constitutional rights while simultaneously providing no negative repercussions on plaintiffs for filing frivolous lawsuits. This law will have negative impacts on low-income families and abortion providers. Also, this law allows for substantial damages to be given to a plaintiff who potentially has no legal showing of injury. Finally, this law represents a dangerous escalation of governmental power to circumvent constitutional protections by deputizing citizens and authorizing witch hunts. If any constitutional guarantee can be stripped of its power by state-sanctioned vigilante justice, then it is frightening to think what the future may hold for our constitutional rights.
Student Bio: Joseph Cunningham is a second-year law student at Suffolk University Law School. He is a staffer on the Journal of High Technology Law. Joseph received a Bachelor of Science Degree in Economics and Sports Industry from The Ohio State University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
