Texas' Anti-Abortion Law: Reflecting on Civil Litigation

In August, the Supreme Court refused to block a Texas law banning abortions after six weeks of pregnancy. The vote was 5-4, with three Trump-appointed justices joining two other conservative justices. Dissenting were conservative Chief Justice John Roberts and the court's three liberal justices. The law is the most restrictive abortion act in the U.S., banning abortions after about six weeks of pregnancy while also allowing private citizens to sue any party involved in the procedure-- including clinics, physicians, and people who transport an individual to their appointment.

This bill greatly disadvantages individuals seeking an abortion, as many do not know they are pregnant before six weeks. Reasons for abortion are very diverse and often interconnected - some may seek the procedure for financial reasons, timing, cases of sexual assault, or a combination of different factors. Abortion is a necessary and essential healthcare procedure that should be easy to access. The tight deadline for seeking the procedure coupled with the intense practice of law enforcement by private citizens makes it virtually impossible to get an abortion in the state of Texas.

Texas’ S.B. 8 presents a creative approach to anti-abortions. The bill states that it “ shall be enforced exclusively through”...“private civil actions.” Under S. B. 8, private individuals are the ones who enforce the law because the state is prevented from doing so. Essentially, this is a legal workaround-- it effectively avoids challenges to the bill's constitutionality. S.B. 8 was not ruled on constitutionality. Supreme Court Justice Sonia Sotomayor wrote that the Texas Legislature circumvented constitutional precedent by taking the “extraordinary step of enlisting private citizens to do what the State could not.” Such a method of law enforcement is revolutionary, and it marks a turning point in state legislation.

Several other states have used S.B. 8 as a model to draft their own anti-abortion bills. The court decision prompted representatives in North Dakota, Mississippi, Indiana, Florida, South Dakota and Arkansas to openly declare an interest in passing similar legislation. Florida’s bill, in the style of Texas’ (That being, banning abortions after six weeks and encouraging bounty-hunter style lawsuits), has already been proposed by Rep. Webster Barnaby and is under review.

Civil Litigation in Legislature

While these are decidedly important pieces of legislation pertaining to abortion rights, this form of civil litigation reaches far beyond that singular issue. Law enforcement by private individuals preceded S.B. 8, and when it comes to socially controversial issues, it is sometimes used to disadvantage marginalized communities.

For example, in Tennessee, lawmakers passed a bill this year that facilitates employees, students and parents in recovering “monetary damages for all psychological, emotional, and physical harm suffered”. A person who prevails on a claim brought pursuant to this section is entitled to recover reasonable attorney fees and costs.” This can mean that , if a school lets a transgender individual in a bathroom when there are other people in it, private citizens may sue the institution.