Attacking abortion rights, new Texas law could turn state courts into Thunderdomes litigation


Forty-eight years have passed since the Supreme Court ruling in Roe vs. Wade established a legal right to have an abortion in the United States.

It created a passionate rift that was never (and never will be) resolved. Those who oppose abortion say that terminating a pregnancy is murder. It is an article of faith as fundamental as the Sixth Commandment.

Equally passionately, abortion rights advocates argue that a single woman has the right and responsibility to determine what happens to her body and whether a pregnancy is carried to term.

Many efforts have been made to restrict the terms of the 1973 Roe deer decision. So far, the law remains that the government does not have the power to restrict abortions before a fetus is viable or able to survive outside the womb.

But a law that went into effect Sept. 1 in Texas takes a new procedural approach to effectively stopping abortions for pregnancies after six weeks, before most women know they’re pregnant. This is well below the current constitutional standard of “sustainability”. It establishes an unlimited “private right of action” in which any person or organization can sue any person or organization that aids or encourages a woman seeking an abortion, although the patients themselves cannot be prosecuted under the law.

It’s a unique twist that literally allows anyone on the planet to come to Texas and sue abortion providers, insurers who cover the procedure, crisis counselors, taxi drivers, or d ‘Uber or even friends or relatives who drive a woman to the hospital or to the doctor. Office. If they get a favorable decision, plaintiffs can pocket at least $ 10,000 from anyone who assists a woman seeking an abortion and ask the court to order the defendants to pay the very lawyers who sued them. Defendants, on the other hand, are not allowed to collect legal fees, even if they win.

By explicitly limiting enforcement to private civil suits exclusively in the state courts of Texas and prohibiting enforcement by any state or local government official, the law seeks to bypass any review by a federal court.

So far it has worked.

By a 5-4 vote at midnight on the day the law came into effect, the United States Supreme Court rejected an emergency request by Texas abortion providers to prevent the law from coming into force of the law. While the opinion said the court is not taking a position on whether the underlying law is constitutional, it has sent a chill among abortion rights supporters and left-wing anti-abortion activists. euphoric.

The past four years have not been good for the right to abortion. Former President Donald Trump appointed three Tory Supreme Court justices during his one-time term. By keeping his campaign promise to appoint “pro-life” jurists to court, he tipped the scales so far to the right that even with Chief Justice John Roberts on the side of the Liberal minority, he still did. missed a vote on the September 1 Decision.

There was already a general hunch among abortion rights advocates that a Mississippi case would be argued during the court’s tenure in 2021-2022, Dobbs v. Jackson Women’s Health Organization, could be the vehicle through which its conservative majority ends Roe deer. Now, Texas Senate Bill 8 could also eventually reappear in court.

The law removes any requirement that a claimant has a tangible interest in or would suffer prejudice in a matter under arbitration, a doctrine known as standing.

With the door now open to contentious “bounty hunters,” Texas abortion providers have stopped providing the service for fear of ruinous court judgments and court costs. He sent frightened and frantic Texan women on desperate day-long journeys to neighboring states in search of abortions.

The US Department of Justice filed a trial wednesday challenge Texas law. In Oklahoma, the lawsuit argues, clinics in Tulsa and Oklahoma City are reporting “a staggering overall increase of 646% in Texan patients,” making it even more difficult amid a resurgent coronavirus pandemic for women in the world. ‘Oklahoma to receive timely care.

While applied to abortion in this Texas law, it could be changed from state to state to end activities that the political majority in another state does not like.

For example, what’s stopping a Democratic-led legislature and governor from passing similar legislation that allows anyone to sue gunmakers, gun dealers, gun repair shops or gun collectors and owners every time a gun injures or kills someone? So what if the plaintiff is from halfway around the world and has no connection to the event that triggered the lawsuit?

In federal courts, plaintiffs must demonstrate standing to bring an action, said Jud Campbell, Associate Professor of Constitutional Law at the University of Richmond Law School. By creating an extensive private right of action in which standing is not required, the Texas SB8 has raised concerns “shared by many, including federal justice conservatives,” he said. declared.

“What Texas is exploiting is that individual capacity limits are not enforceable in state courts unless the state makes them enforceable in its courts,” Campbell said. “What’s new here is that the state has attempted to end what would normally be a federal trial.”

One of the main reasons Texas law is such a powerful deterrent for abortion providers in Texas is the uncertainty over the length of time. Roe deer will be held, he said.

“If the right to have an abortion were guaranteed, it wouldn’t prevent them from being prosecuted, but it would ensure that they would end up winning in the lawsuit,” Campbell said.

For example, if a state adopted a policy banning a specific religious practice and allowing offenders to be prosecuted, he explained, “you might know with 100% certainty as an accused that you would win.” Because there is no prospect of a court curtailing First Amendment religious freedoms, people would feel confident in flouting state law and being vindicated in court, and potential plaintiffs would be reluctant to continue for the same reason.

It’s more than surprising to see a Republican Party historically opposed to fleeing lawsuits gleefully turn Texas into a Thunderdome litigation open to all comers keen to cash in quickly.

The Texas SB8 has already entered the Virginia gubernatorial race this fall. Democratic candidate Terry McAuliffe has sought to handcuff his Republican opponent, Glenn Youngkin, to him and Trump. Youngkin said categorically during Thursday’s first televised debate with McAuliffe that he would not sign a Texan-style abortion law if elected, but he obscured when asked if he would restrict or ban otherwise abortion – something he was caught promising he would do in a secretly recorded video earlier this year.

At the end of the day, it’s not about legal doctrines, legal strategies, or uncontrollable litigation. These are just symptoms of a poisoned and unsustainable political environment in which a Balkanized society no longer hesitates to trample on long-standing precedents and due process guarantees to impose a partisan goal.


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