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 That structure has alarmed both abortion providers, who said they
feel like they now have prices on their heads, and legal experts who
said citizen enforcement could have broad repercussions if it was
used across the United States to address other contentious social
issues.
"It is a little bit like the Wild West," said Harold Krent, a
professor at Chicago-Kent College of Law. He called it a throwback
to early U.S. history when it was common to have privately enforced
laws at a time when the government was limited and there was little
organized law enforcement.
The law, known as S.B. 8, bans abortions after six weeks of
pregnancy. That is often before women realize they are pregnant and
could effectively ban 85% to 90% of abortions, abortion rights
campaigners said.
Krent said the measure could be ripe for abuse because anyone can
sue for any reason, without government officials exercising the kind
of discretion they normally would over enforcing a law, Krent added.
This feature creates all kinds of problems for abortion providers
seeking to challenge the law, which went into effect on Wednesday.
The Supreme Court late on Wednesday denied an application brought by
a coalition that supports abortion rights seeking to put the law on
hold. [L1N2Q4097]
Texas is the only one of 12 six-week abortion bans that has gone
into effect. Others were routinely blocked by lower courts as a
violation of Supreme Court precedent - including the landmark 1973
Roe v. Wade ruling - guaranteeing the right to an abortion,
especially at an early stage of pregnancy.
The challenges facing abortion providers in Texas are two-fold.
'VIGILANTE' SYSTEM
First, the law sets up what critics have called a "vigilante" system
in which any Texas resident can sue an abortion provider or anyone
who aids and abets someone seeking to obtain an abortion. If they
win, they could get a bounty of at least $10,000, which would come
out of the pockets of the defendants. The mere threat of litigation
has prompted abortion clinics in Texas to immediately limit their
abortion services in compliance with the law.
There are other laws that have provisions that allow private
citizens to enforce them, including various environmental laws such
as the Clean Air Act, as well as statutes that encourage
whistleblowers to report fraud and abuse within the government. But
these laws do not give people the power to sue to prevent someone
else exercising a right recognized by the Supreme Court.
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The way the law has written also makes it difficult for abortion
rights campaigners to challenge it.
In the current litigation, lawyers for the state have countered that
the abortion rights campaigners' "own litigation decisions, not some
injustice foisted upon them" are to blame for their failure to block
the measure. They say, for example, that the challengers waited too
long to file their lawsuit.
Legal experts say that abortion providers could likely succeed in
winning lawsuits on an individual basis but face barriers in
blocking it statewide, In the current case, the New Orleans-based
5th U.S. Circuit Court of Appeals canceled a lower court hearing to
consider whether the law should be put on hold in part because of
the complex legal questions raised.
One risky way abortion providers could seek to challenge the law is
to continue to provide abortions after six weeks, thereby inviting a
lawsuit, said Vikram Amar, a professor at the University of Illinois
College of Law.
Then, they could argue that the law is unconstitutional and "hope
that a state court decides to follow existing Supreme Court
precedent and declare the state law invalid," he added.
If the law remains in place, abortion providers expect other states
to enact similar measures. It could also prompt states to consider
similarly structured laws aimed at people exercising rights that
state officials - whether they be Republicans or Democrats - frown
upon.
"You can spin out hypothetical after hypothetical about any
individual right that a state could undermine," said Marc Hearron, a
lawyer for the Center for Reproductive Rights who represents the
challengers. "That's why I think everyone from all sides ... ought
to be extremely concerned."
As for those providing abortions, Dr. Anuj Khattar, a doctor from
Washington state who flies to Texas to provide abortions, believes
the law will have a chilling effect.
"I feel like there's a bounty on my head and I don’t want play this
game," he said.
(Reporting by Lawrence Hurley, Additional reporting by Gabriella
Borter and Andrew Chung; Editing by Scott Malone and Grant McCool)
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