Texas abortion law written to put providers at a legal disadvantage

Chuck Lindell
Austin American-Statesman

The new law that bans most abortions in Texas was written by abortion opponents in the Legislature to place clinics and providers at a distinct disadvantage in the legal system.

And it does so by employing a series of unusual provisions, starting with the way Senate Bill 8 will be enforced: by lawsuits filed in a state court by members of the public, whether or not they have any connection to the contested abortion or even live in Texas.

Under SB 8, "any person" can sue abortion doctors, nurses and clinic staff. They also can sue somebody who "aids or abets" an illegal abortion — or even if they just intend to provide such help — including those who pay or reimburse the cost of an abortion. 

"This ability of any person to sue, that's really unusual," University of Houston law professor Seth Chandler said.

Generally, to be able to successfully sue somebody, a plaintiff has to show that they were hurt in some particular way, Chandler said.

Southern Methodist University law professor Joanna Grossman agrees. 

"I can't think of another area under Texas law where the Legislature grants standing (to sue) to people who have not suffered a legally recognized injury," Grossman said.

University of Texas women rally at the Texas Capitol to protest Governor Greg Abbott's signing of the nation's strictest abortion law that makes it a crime to abort a fetus after six weeks, or when a "heartbeat" is detected. Abbott signed the law Wednesday, Sept. 1st, 2021.

Texas abortion law adds a $10,000 'bounty'

SB 8 also lets successful plaintiffs collect at least $10,000 for every illegal abortion that is exposed, with the opportunity to collect from multiple people involved in the same procedure.

"This $10,000 is a minimum, by the way. It's just a floor," Chandler said. "What's unusual here is the ratio of these damages. In general, the Supreme Court has said the ratio of punitive damages to actual damages shouldn't exceed 10. Here, people have suffered essentially zero dollars in actual damages, and yet we're permitting them to receive at least $10,000 in damages.

"The statute doesn't call them punitive damages, but that's exactly what they are, because they're designed to punish the abortion provider or abettors for having taken activities that the authors don't like. It's not really designed to compensate the plaintiff for an injury that was suffered," he said.

Another unusual feature of SB 8 is its asymmetrical approach to courtroom winners and losers.

If a lawsuit succeeds, the judge is required to make the abortion provider pay the accuser's attorney fees and court costs.

The same penalty does not apply to accusers who lose in court. SB 8 bans the judge from awarding court costs and lawyer fees to a victorious abortion provider no matter how many times they are sued or how many courts they prevail in.

SB 8 also allows Texans to file suit in their home county instead of the county where the abortion took place, giving plaintiffs access to district judges who might have been elected in areas that are far more conservative than in major cities, where most abortion clinics operate, Chandler said.

"This is really the most significant provision," Chandler said. "Since anyone can be a plaintiff, it basically permits the most conservative venues in Texas to be used as a forum."

A coming deluge of lawsuits?

SB 8 prohibits abortions after fetal heart tones can be detected, which typically occurs around the sixth week of pregnancy, before most women know they're pregnant. Lawsuits can allege that an abortion took place too late in a pregnancy, or took place without using a heartbeat monitor first.

Abortion providers say they fear a deluge of lawsuits from abortion opponents, forcing them to hire lawyers and fight expensive legal battles.

Grossman isn't sure that's how SB 8 will play out.

"The Legislature anticipates that there aren't really going to be any lawsuits because the providers are not going to operate under this law. They can't," she said. "And that, so far, is what's happening. The providers have basically ceased operations except for the very few abortions that can be completed under the six weeks."

Groups that arrange logistics and help women pay for abortions have stopped as well or have shifted "to getting women out of Texas," Grossman said.

"These are all scare tactics — but effective ones, because people literally can't afford to operate in this world," she said.

Far-reaching implications of Texas abortion law

If a lawsuit is filed, the burden would fall to the accuser to prove that an illegal abortion took place, Chandler said. And while abortion opponents may be tempted to file suit based on a guess, subjecting providers to legal expenses that could threaten their continued operation, Chandler said he would recommend against it.

"I would suggest that even in the most conservative jurisdictions, judges are not going to look kindly on plaintiffs who advance lawsuits without having any proof," he said. "An attorney can be sanctioned for filing a lawsuit without any basis."

The bigger problem, Chandler said, is SB 8's reliance on a $10,000 "bounty" to enforce a law that is clearly unconstitutional under U.S. Supreme Court precedent, even though the high court declined to block the law this week while litigation continues over SB 8's fate.

"The big picture here is, yes, this is about abortion, but it's really about someone finding a bug in judicial procedures to be able to prevent people from exercising their constitutional rights," he said.

Under that premise, Chandler asked, what's to stop New York lawmakers from putting a bounty on people who own guns, or the Texas Legislature, pleased with SB 8's success, from putting a $10,000 bounty on people who criticize lawmakers?

"That would be clearly unconstitutional, yet people would have to spend time and money defending themselves from ridiculous lawsuits," Chandler said.

"The problem is that the procedure that's been developed here can be used not only to crush constitutional rights that you don't care for, it can also be used to crush constitutional rights that you truly cherish," he added.