The more I read about the Taliban Texas anti-abortion law (Senate Bill 8), the more it becomes clear that this a legal clusterfvck of gigantic proportions that may come back to bite its proponents in a big way. This is a truly bizarre piece of legislation that is too cute for its own good by half. It tramples on all kinds of constitutionally protected rights in novel and brazen ways. There are so many issues here that it is, frankly, difficult to fit them all into one article. But we will try.
Civil vs Criminal Enforcement
So, the first thing to take note of is that the proponents hope to prevent people challenging the law by taking the enforcement of this legislation out of the hands of Texas law enforcement — its District Attorneys and the Attorney General — and handing it to private citizens.
What normally happens in these kind of cases is that the Attorney General or the various District Attorneys are required to enforce any restrictions on abortion. For example, in the legendary case of Roe v. Wade, the defendant was Henry Wade, the District Attorney of Dallas County, who was tasked with enforcing Texas abortion law in his county. But no more. Until one of those private citizens tries to sue a woman or an abortion provider, there is no one who can be named as a defendant in a challenge to the law’s constitutionality.
The Comparison with East Germany
A number of comparisons have been made between this law and the old German Democratic Republic, famous for having its citizens inform on each other in an intricate web of mutual betrayal. But the key to their “informant society” was that the informants were all allowed to hide (that is, until the collapse of the East German Republic and the eventual opening of the security files, to the great embarrassment of many citizens).
In Texas however,, the citizen zealots will have to expose themselves. Many will simply “drop a dime” on a neighbor, friend or loved one, but to prove a legal case, they will have to be called as witnesses and disclose what they know.
There may be lots of false accusations and issues that are difficult to prove, and people are going to be really fired up with each other and just about ready to murder each other, which won’t be hard to do because Texas also liberalized its gun laws to allow people to carry guns without a license.
Who will actually File Suit?
I’m not sure that many individual citizens are going to want to file suit themselves to collect their $10,000. They would have to hire an attorney and come into court as the actual plaintiffs, and there would be lots of reasons that wouldn’t really work in practice.
What is more likely is that they would just drop a dime, and hope that somebody else does the prosecuting. And somebody else will do the prosecuting for sure. There are groups like the Texas Alliance for Life which are likely to hire teams of attorneys and go after abortion providers, seeing if they can bankrupt them with multiple $10,000 judgments.
But setting up a website where Texan evangelists can drop a dime isn’t as easy as it sounds. In fact, there was already a website — www.prolifewhistleblower.com — that had been established by Texas Right to Life, which was itself quickly attacked by trolls and overwhelmed with fake reports from TikTok and Reddit users, causing GoDaddy to bounce the website for violating its terms of service.
One can expect probably any public website asking people to turn each other in to suffer a similar fate.
Problems of Proof
Next, just consider the problems related to proving that someone had an abortion. Imagine, you call someone to the stand and say:
- You had an abortion.
- No I didn’t. I had a miscarriage. (Prove me wrong.)
Or of proving when someone became pregnant:
- You became pregnant on August 21st.
- No I didn’t. I became pregnant on September 2nd. (Prove me wrong.)
Proof here — because these are civil and not criminal cases — is by the 51% “preponderance of the evidence” standard and not the 90% “proof beyond a reasonable doubt” standard. But still, it can be hard for someone to know when they got pregnant, how is a stranger going to be able to prove when you got pregnant. Just think about it.
First Amendment issues
The Texas anti-abortion law is so broad, that among other things, it imperils anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion . . . regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter.”
In addition it creates liability for anyone who “intends to engage in the conduct described by Subdivision (1) or (2).”
This is like the Thought Police.
How do you prove that someone “intends” to engage in an abortion. And how do you make that a crime (or technically, a civil penalty)?
That seems to be a flagrant violation of the First Amendment, which, after all, establishes that the government “shall make no law . . . abridging the freedom of speech.”
Federal Civil Rights issues
Then there are civil rights issues, such as those involving 42 USC §1983, which prohibits denying somebody of their civil rights under “color of state law.” Until Roe v. Wade is overturned, there is still a constitutional right to an abortion. If a civil vigilante seeks to keep you from having an abortion by using a state law, isn’t that a violation of §1983?
It could be.
And if it is, there are serious penalties associated with violating §1983.
There are other civil rights statutes that could potentially be infringed by the application of the Texas fetal heartbeat bill. For example, noted constitutional scholar Laurence Tribe has suggested that the Department of Justice could use 18 U.S. Code § 241, which makes it a crime for “two or more persons” to agree to “oppress, threaten, or intimidate” anyone “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States,” to go after anyone seeking to enforce the Texas bounty provisions.
This question is well above my pay-grade, but clearly something both the Department of Justice, and eventually the Supreme Court, should look at.
Right to Counsel issues
The law has two very peculiar provisions which (1) allow the award of court costs and attorney’s fees to the plaintiffs if they prevail, but (2) specifically prohibit the award of court costs and attorney’s fees to the defendants, if they prevail against their accusers.
That is (to the best of my knowledge) unprecedented in American law.
The practical effect of this is to incentivize false accusations on the part of plaintiffs, with no penalty for these false accusations, and to make it exceedingly difficult for defendants to hire counsel to defend themselves. (In practice, it’s likely that there will be funds created that defendants will be able to access to defend themselves, as this is such an extremely polarizing issue.)
That kind of imbalance implicates both “equal protection” and “right to counsel” issues.
The Opiods Comparison
A lot of things have changed since the 1973 Roe v. Wade decision, and one of them is the easy availability of opioids, which have fueled the opioids crisis over the last decade. The opioids crisis proves — at a minimum — that it’s not that hard to create a thriving industry in illegal narcotics that the authorities have a hard time reigning in.
Enter the RU486 “morning after” pill.
One of the many ways that people could get around Texas’ super-strict abortion laws will be — I imagine — a quasi-legal industry of pills that will allow women to get and use the morning after pill to avoid the whole abortion question altogether. That way you don’t have to wait for a “fetal heartbeat,” you take a pill “just in case.” (The morning after having sex there is no way to know whether an egg was fertilized and no way to prove whether anything was aborted.)
Already there are groups like the Amsterdam-based AidAccess that prescribe pills to people in the United States, with pharmacies in India filling the prescriptions. Texas and their pro-life evangelists are just begging other groups and organizations all around the world to circumvent their retrogressive abortion restrictions.
The Shadow Docket
Finally, there is the question of the Supreme Court’s “shadow docket,” which has been highlighted by this act as well. The “shadow docket” is, briefly, the docket of “emergency” cases where the Supreme Court can issue orders relative to ongoing litigation — often to prevent some injustice from going forward — before a case is fully briefed and formally heard.
- In the past this procedure has often been used to put a hold on federal executions while there were still questions that had not been fully litigated.
- More recently it had been used to allow churches to continue to hold worship sessions even during the Covid pandemic when state public health regulations had banned large in-person gatherings.
This time, the Supreme Court failed to block in the implementation of this Texas law — see Whole Woman’s Health v. Jackson — despite the many constitutional questions raised by the Texas law. Even Chief Justice John Roberts — a conservative but also an institutionalist — sided with the liberals on the basis that there are so many questions that needed to be examined here, in particular whether the state of Texas could avoid responsibility for the enforcement of this statute by outsourcing the responsibility to vigilante citizens. (Read the entire text here.)