The new law in Texas effectively banning most abortions has ignited widespread controversy and debate, in part because of the mechanism it uses to enforce the restrictions: deputizing ordinary people to sue those involved in performing abortions and giving them a financial incentive to do so.<\/p>\n
The law establishes a kind of bounty system. If these vigilante plaintiffs are successful, the law allows them to collect cash judgments of $10,000 \u2014 and their legal fees \u2014 from those they sue. If they lose, they do not have to pay the defendants\u2019 legal costs.<\/p>\n
The Supreme Court declined to stop the legislation from taking effect, and so far, no one has brought a suit against an abortion provider because clinics in the state have chosen to abide by the law, which effectively bars abortions starting around the sixth week of pregnancy.<\/p>\n
The enforcement provision has generated backing from those seeking to limit abortion rights but confusion and criticism among supporters of abortion rights.<\/p>\n
\u201cWhen the law first came out and I was reading it, I thought I was missing something,\u201d said Mary Ziegler, a professor at the Florida State University College of Law who specializes in the history of reproductive law. \u201cIt almost seemed like anyone could sue anyone \u2014 and that didn\u2019t seem right. But it was. It really is that extraordinary.\u201d<\/p>\n
Here are some questions and answers about the enforcement provision.<\/p>\n
Not really \u2014 or at least not with the same scope as the Texas law.<\/p>\n
While giving private citizens the right to file suit in lieu of \u2014 or in tandem with \u2014 criminal enforcement by state officials is a staple of medical malpractice cases and other forms of tort law, the Texas law is different.<\/p>\n
It removes enforcement entirely from state jurisdiction, and vastly expands who can sue, and who can be sued, over abortions. The statute, for example, permits anyone \u2014 even people who live outside Texas \u2014 to file a complaint in any court in the state if they believe an abortion has been performed. It also makes nearly everyone involved in the procedure \u2014 except for the woman who receives the abortion \u2014 liable to suits, meaning that doctors, nurses, insurance companies, even Uber drivers who help take women to clinics, could be vulnerable.<\/p>\n
According to Ms. Ziegler, the notion of using civil lawsuits to curb or stop abortions first emerged in the early 1990s, when a Texas pastor named Mark Crutcher created a program called Spies for Life that published manuals showing people how to use the legal system to go after abortion clinics and providers. In 1999, Louisiana passed its own law giving women who had abortions the right to sue their providers.<\/p>\n
State Senator Bryan Hughes, the primary author of the Texas law, has said his model for the law, known as S. B. 8, was a local ordinance passed in Waskom, Texas, in 2019 that empowered residents to sue anyone who performed an abortion in the city or helped someone attain one. Unlike S.B. 8, however, the Waskom law was largely symbolic, given that the city had no clinics that actually performed abortions.<\/p>\n
The Justice Department sued Texas on Thursday, arguing that S. B. 8 was passed \u201cin open defiance of the Constitution\u201d and Supreme Court cases like Planned Parenthood v. Casey and Roe v. Wade. But the department\u2019s 27-page complaint took particular issue with the law\u2019s reliance on what it called \u201cbounty hunters,\u201d saying that empowering them to enforce the law was an \u201cunprecedented scheme to insulate the state from responsibility.\u201d<\/p>\n
Moreover, officials claimed, S. B. 8 had essentially frozen the practice of abortion in Texas and achieved its goal of stopping the procedures without a single private lawsuit having been filed. After all, the complaint pointed out, the mere threat of litigation was enough \u201cto make it too risky for an abortion clinic to operate\u201d in Texas.<\/p>\n
The department\u2019s legal case relies on the argument that ordinary people, if and when they do file suit against abortion providers, will in effect be acting as agents of the state of Texas. What the government is asking for in its complaint amounts to a federal injunction barring everyone in the entire state from filing suits against abortion providers, which some lawyers say could be a bit far-fetched. Then again, it may not be any more far-fetched than S. B. 8 itself, which empowered everyone in the entire state to file suit.<\/p>\n
Ultimately, legal scholars said, S. B. 8 is also likely to be challenged in another way. At some point, an abortion provider or someone else involved in the process \u2014 say, a group that funds abortions \u2014 could step forward and willingly violate the law as a calculated test case. But that could take time and have uncertain results.<\/p>\n
\u201cWhatever happens, it\u2019s going to take a while,\u201d Ms. Ziegler said. \u201cAnd in the meantime, this law will be the status quo.\u201d<\/p>\n
In recent days, lawmakers and executives in at least seven states have said they are considering similar statutes. Last week, Gov. Kristi L. Noem of South Dakota, a Republican, said she had directed lawyers in her office to review S. B. 8 \u201cto make sure we have the strongest pro-life laws on the books.\u201d Around the same time, Wilton Simpson, the Republican leader of the Florida State Senate, said that members of his chamber were already working on a statute similar to the one in Texas.<\/p>\n
The private enforcement mechanism was also inserted into a new gun law in Missouri that grants residents the power to sue local law departments for giving \u201cmaterial aid and support\u201d to federal agents for perceived violations of the Second Amendment. Under the law, which the Justice Department has challenged, Missourians could file suit to stop local police officers from sharing data or conducting joint operations with federal agents working on gun cases.<\/p>\n
While some on the left have talked about the notion of drafting laws empowering people to sue over issues they hold dear \u2014 like stricter gun regulations, for example \u2014 it has not risen much so far beyond social media chatter. For now at least, Democrats have not seized on private civil enforcement as a legal strategy.<\/p>\n