Analysis: Texas abortion ban opens up 'Wild West' of enforcement, critics say

[September 02, 2021]  By Lawrence Hurley

WASHINGTON (Reuters) - Texas's strict new abortion ban h hands over the power of enforcement to private citizens - and offers them cash payments to do so - a unique construction that makes the law harder to block in court.

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.

The way the law has written also makes it difficult for abortion rights campaigners to challenge it.

An exam room at the Planned Parenthood South Austin Health Center is shown following the U.S. Supreme Court decision striking down a Texas law imposing strict regulations on abortion doctors and facilities in Austin, Texas, U.S. June 27, 2016. REUTERS/Ilana Panich-Linsman

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)

[© 2021 Thomson Reuters. All rights reserved.]

Copyright 2021 Reuters. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.  Thompson Reuters is solely responsible for this content.