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Texas Law That ‘Deputizes Private Citizens’ to Ban Abortions ‘Flagrantly Violates’ Constitutional Rights: Lawsuit

Gov. Greg Abbott

Texas Gov. Greg Abbott

A coalition of abortion providers and reproductive rights advocates filed a lawsuit in Texas seeking to prevent the state from enforcing a first-of-its-kind anti-abortion law that incentivizes private citizens to sue any person or entity that assists a woman with getting an abortion after a fetal heartbeat has been detected.

The controversial measure—House Bill 8—which was signed into law by Gov. Greg Abbott (R) in May, bans abortions approximately six weeks into pregnancy, before most women are even aware that they’re pregnant.

However, H.B.8 is unique in its method of enforcement. The law creates a private cause of action for any Texans to bring a lawsuit against anyone who “aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise [..] regardless of whether the person knew or should have known that the abortion would be performed.”

Additionally, the measure, which is set to take effect in September, states that a plaintiff whose lawsuit is successful is entitled to “damages in an amount of not less than $10,000” as well as attorney’s fees.

Because the law is effectively enforced by private citizens as opposed to elected officials, the typical approach to having a judge block the law by suing the government was not available for the plaintiffs. Instead, the suit names all judges in the state with jurisdiction over the newly created civil actions, as well as all court clerks that collect fees for civil actions, several state medical officials, and Texas Attorney General Ken Paxton (R).

The complaint, filed in the U.S. District Court for the Western District of Texas, claims that state lawmakers knew when the measure was passed that it was “patently unconstitutional” and “flagrantly violates” constitutional rights. If allowed to take effect, the measure will “create absolute chaos in Texas,” the complaint argued.

“The Texas Legislature was well aware that S.B. 8 would stand no chance of taking effect if a court reviewed it in advance of the law’s September 1 effective date. So the Legislature attempted to insulate its patently unconstitutional law from judicial review,” the suit states. “S.B. 8 purports to bar government defendants—such as the attorney general, local prosecutors, and the health department—from directly enforcing the law’s terms. Instead, the Act deputizes private citizens to enforce the law, allowing ‘any person’ other than government officials to bring a civil lawsuit against anyone who provides an abortion in violation of the Act.”

Amy Hagstrom Miller, the President and CEO of Whole Woman’s Health, one of the leading abortion providers in the state and a plaintiff in the suit, told local news outlet Express News that the law would engender a “nightmarish future” in which Texans were “encouraged to turn on each other.”

“This is far and away the most extreme restriction on abortion I’ve ever seen,” she said. “If this law is allowed to stand in Texas, it won’t be long before it shows up in other states.”

In addition to the private enforcement mechanism, the suit also claims that the law would unconstitutionally restrict access to abortion procedures, approximately 85-percent of which occur after 6 weeks in Texas, according to the Center for Reproductive Rights, which is representing the plaintiffs along with the American Civil Liberties Union (ACLU) and Planned Parenthood.

“Texas has long led the country in passing extremist laws intended to chip away at Texans’ right to safe, accessible abortion care—from imposing long waiting periods, to forcing people to undergo an unnecessary ultrasound, to requiring people to listen to false information about abortions under the guise of ‘health consultations,’”Adriana Piñon, policy counsel and senior staff attorney at the ACLU of Texas, said in a statement to Law&Crime. “Now the state is trying to prevent people from getting abortions, full stop. And it allows   anti-abortion zealots to threaten people with lawsuits for simply trying to help a friend or relative who needs abortion care. We won’t accept these unlawful and extremist tactics, and will continue fighting for Texans’ fundamental right to make decisions about their bodies and their lives.”

Read the full lawsuit below.

[image via WFAA-TV/YouTube]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.