Until the Supreme Court bans abortion — roughly a year from now — states will keep passing facially unconstitutional abortion bans to preen for their right-wing constituents and, more importantly, to avoid doing any of the real work of governing. Texas, a state stalled with a mere third of its residents fully vaccinated while continuing to operate as though nothing’s wrong, passed a new abortion bill this week, to get ahead of the curve coming next Term.
But the Texas law is specifically structured to withstand federal scrutiny between now and the looming medieval epoch. Instead of banning abortions outright and opening the state up to a slam-dunk defeat, Texas has crafted a different approach to its “ban” and it creates an absolute nightmare for all the Civ Pro nerds out there.
Sec. 171.207. LIMITATIONS ON PUBLIC ENFORCEMENT.
(a) Notwithstanding Section 171.005 or any other law, the
requirements of this subchapter shall be enforced exclusively
through the private civil actions described in Section 171.208. No
enforcement of this subchapter, and no enforcement of Chapters 19
and 22, Penal Code, in response to violations of this subchapter,
may be taken or threatened by this state, a political subdivision, a
district or county attorney, or an executive or administrative
officer or employee of this state or a political subdivision
against any person, except as provided in Section 171.208.
But if no government actors are enforcing the law, how does it work? Well, buckle up:
Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR
ABETTING VIOLATION. (a) Any person, other than an officer or
employee of a state or local governmental entity in this state, may
bring a civil action against any person who:
(1) performs or induces an abortion in violation of
this subchapter;
(2) knowingly engages in conduct that aids or abets
the performance or inducement of an abortion, including paying for
or reimbursing the costs of an abortion through insurance or
otherwise, if the abortion is performed or induced in violation of
this subchapter, regardless of whether the person knew or should
have known that the abortion would be performed or induced in
violation of this subchapter; or
(3) intends to engage in the conduct described by
Subdivision (1) or (2).
Yes, traditional conceptions of standing be damned! The law gives anyone who isn’t a state actor the right to sue anyone who “aids or abets” an abortion and goes so far as to assign liability “regardless of whether the person knew or should have known” that an abortion would ultimately take place. How attenuated can this liability become? Who knows, but it certainly looks like any old dingus can drag you through the courthouse doors if you loaned someone a few bucks no questions asked and they went out and got an abortion.
Holy vexatious litigation Batman. The law provides for a minimum of $10,000 in statutory damages lest you thought a reasonable court could toss a case for lacking any credible theory of damages. Section 3 straight up assigns liability even if there’s no abortion! And if the plaintiff prevails, the defendant pays attorneys fees — though there’s no reverse provision — furthering girding the looney bar.
Check this out! Under a subsection beginning “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;
Even if the activity is legal today, liability stretches back if it’s ever overturned. A government could functionally impose any unconstitutional law it wants and just bank on no one daring to act lest they be sued years from now.
Oh, and don’t worry there’s no exceptions for rape or incest except that the rapist themselves can’t bring the claim. But their friends can. There’s no way that’s going to be a problem!
I’ve given John Roberts a lot of flack for systematically closing off the courts to the people who most desperately need an avenue for redress, but this is straight up his personal nightmare. People suing without any injury, fully indemnified for their costs in bringing suits, with no requirements that any act even occur. But it does get by the first stumbling block of abortion restrictions by taking state actors out of the occasion.
If you thought Texas courts couldn’t get any crazier, here comes a tsunami of lawsuits against everyone who ever met someone who just thought about an abortion. Looking forward to seeing outlines of 1L torts for Texas law students next year: “the elements of a tort are as follows… unless it’s talking to a woman getting an abortion, in which case [shrug emoji].”
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May 22, 2021 at 01:14AM
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Texas Abortion Bill Opens Courthouse Doors To Pure Lunacy - Above the Law
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