First, the basics of the new Texas law:
- It’s illegal to perform an abortion in the state, or to aid and abet someone getting an abortion in the state, after the sixth week of pregnancy.
- State authorities are not the enforcers, and it’s not the criminal courts that will hear the cases. Rather, it’s for the civil courts.
- Now, here is the kicker: anybody can file suit against an abortion provider who violates this law. If the plaintiff prevails, the defendant is liable for $10,000 in damages plus court fees. (But only one plaintiff is entitled to sue for one abortion.)
- The woman who gets the abortion is not liable, but if someone pays for her abortion, either an insurance company or a friend, the payer is liable for aiding and abetting.
The Supreme Court refused to block the law from going into effect. In a 5-4 decision, the majority made clear that this was not a ruling on the merits of the law, but rather, the Court declined on procedural grounds. Here’s an excerpt:
[F]ederal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves…. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention…. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.
This law would appear to be constitutionally problematic on a number of counts. Obviously, it totally flies in the face of the 1973 Roe v. Wade decision, which ruled that states can’t interfere with the right to an abortion during the first trimester, and can only regulate abortion in the second trimester for reasons of medical safety. Subsequent rulings have struck down laws that placed an “undue burden” on women seeking abortions. But there’s another big problem that should get some attention from the courts: What ever happened to “standing to sue”? One of the basic textbook principles of the judiciary is that you can only file suit if you can show that you yourself have been injured by the action that you’re challenging. It takes more than an opinion to justify filing suit. But according to this law, any anti-abortion activist can bring any doctor to court (or any friend of a woman getting an abortion who helps her pay for it) and get $10,000. Again, what ever happened to “standing to sue”?
It’s not clear what the ultimate fate of this law will be. At the moment, abortion providers in Texas seem inclined to simply obey the new law, much as they deplore it. If the law is going to be challenged effectively, it’s probably going to take a doctor willing to break the law, be sued, receive a judgment ordering to pay $10,000, and then appeal it to the federal courts.
But it needs to be remembered that there are six justices on the Court who disapprove of Roe v. Wade, and at least five seem in favor of overturning it.
There are other states with tough new abortion laws that got passed after Trump appointed his second justice, Brett Kavanaugh, to the Court. The Supreme Court has already agreed to hear a case involving Mississippi’s fifteen-week law.
Article on the Texas law at SCOTUSBLOG, September 1, 2021