Washington-Although it clearly conflicts with the decades-old precedent set by the U.S. Supreme Court in the landmark Roe v. Wade decision, the Texas anti-abortion law that came into effect last week is a complex legal project.
It was established to avoid initial judicial review and bankrupt them by worrying about being bombarded by excessive legal fees, thereby forcing people to abide by it, even if they think it violates their constitutional rights.
This week, Attorney General Merrick Garland ordered the Department of Justice to explore “all options” to challenge Texas’ highly restrictive abortion laws and protect abortion clinics under attack. However, many Democrats and supporters of abortion rights warn that although they believe the law is unconstitutional, it is formulated in a way that makes legal challenges difficult.
Senate Bill No. 8, as the legislation says, makes it illegal for doctors to perform abortions after the sixth week of pregnancy in Texas—most women even before they realize they are pregnant. However, it is crucial that the law specifically prohibits state officials from taking action to enforce the law, and instead delegates this responsibility to ordinary citizens who are eligible to receive 10,000 abortions from any woman they can prove to help or abet women seeking help.
The law covers a wide range of networks, which means that not only doctors, clinicians and clinic staff, but even relatives who help pay for abortions are also liable. However, experts say that the plain language of the law stipulates that only those who “intentionally” help seek abortions are liable, which means that the commonly cited examples of Uber drivers facing litigation under the Act are incorrect.
The Supreme Court ruled by 5 votes to 4 last week to refuse to prevent the law from taking effect on the grounds of procedure, arguing that because there is no specific individual responsible for enforcing the law, no one can be sued for it. Therefore, the court cannot prohibit anyone from enforcing the law. .
President Joe Biden severely criticized the Supreme Court’s ruling and directed Garland to explore ways to challenge Texas law.
So far, abortion clinics in Texas have been careful to comply with the new laws — rape or incest is no exception — and avoid firing by citizens or groups who claim to violate the new abortion restrictions. However, it is likely that someone will eventually ignore the six-week pregnancy limit before surgery, leading to a constitutional test case.
Opponents of the legislation have been severely criticizing the Texas legislature and Republican Governor Greg Abbott, who signed the legislation.
Nancy Northup said: “Texas politicians have temporarily succeeded in mocking the rule of law, subverting abortion care in Texas, and forcing patients to leave the state if they can Constitutionally protected health care,” Chairman and CEO of the Center for Reproductive Rights. “This should chill everyone in this country who cares about the Constitution. We will continue to fight this ban until abortion is resumed in Texas.”
Others pointed their anger towards the Supreme Court’s choice not to prevent the enforcement of the regulations.
“The Supreme Court ignored 50 years of precedent, set back time and basically made Texas a former Roy [v. Wade] The President and CEO of the Planned Parenthood Federation of America, Alexis McGill Johnson, said in a statement.
Supporters claim victory
However, supporters of the law see it as a victory over a court system they believe has been manipulated.
John Seago, director of Texas right to life legislation, said that the anti-abortion movement has two main goals in advancing legislation, and the organization is closely involved in drafting legislation.
“The first one is, when we have lawless local prosecutors who do not enforce anti-abortion laws, how do we actually implement anti-abortion policies,” Sigo said. “The second is these radical federal judges-how do you bypass them? [They are] Find excuses to uphold the law, even if we can win in the end. ”
The origin of the law
The roots of SB 8 can be traced back to an article published in the Virginia Law Review in 2018 by former Texas Attorney General Jonathan F. Mitchell. It was argued that when federal courts blocked the enforcement of state laws, these laws were not “repealed” as commonly believed. Instead, they remain on the books and have not been implemented at all.
If the later Supreme Court rejects the previous prohibition of enforcement, this will leave room for future enforcement and even retrospective enforcement. Moreover, crucial to this case is that Mitchell’s theory is that a bill that provides a private cause of action in a state court can continue to be enforced by ordinary citizens, even if the federal court has prohibited state officials from enforcing the bill. This will continue to be the case unless the person being sued under the law consistently appeals to the Supreme Court and wins.
“Unless and until the U.S. Supreme Court declares a statute unconstitutional, states can still freely authorize and accept private enforcement actions in their own courts-even if the federal district or circuit courts do not approve the statute and prohibit enforcement by the state executive,” Mitchell wrote.
Mitchell was closely involved in the drafting of SB 8.
Private cause of action
The layperson may not know how an individual who has nothing to do with the abortion person-nor can they prove that they have suffered personal injury as a result-is eligible to sue in the first place.
If this is a federal law, the objection will be valid. But under Texas law, if the legislature chooses to do so, the legislature is allowed to grant personal status in certain circumstances. In SB 8, this is exactly what the state legislators did.
Most states have similar rules that allow the legislature to grant the status of ordinary citizens, which is one of the reasons why the governors and legislators of at least seven states across the country stated that they are preparing legislation similar to the state’s SB 8.
Afraid of lawyer fees
The structure of the law is designed to enforce compliance through fear of laws and bills-even if the defendants in potential cases believe that their rights have been violated and they will be proven correct in court.
The law itself does not allow the indicted person to recover the attorney’s fees from the plaintiff, even if they can prove their innocence. However, it does allow the plaintiff to recover attorney fees from the defendant if found guilty.
But the burden of legal fees may be heavier than it seems. If Mitchell’s theory is correct, and the enforcement of the law can only be truly prevented by the Supreme Court ruling that it is unconstitutional, this means that those who want to challenge it will face many years of lawsuits involving huge legal costs.
But in the United States, defendants who claim that their constitutional rights have been violated in federal lawsuits are usually not eligible for legal fees.
In the legal review article, Mitchell clearly stated its meaning.
“Of course, the defendants in these private enforcement actions can reiterate the Constitution’s opposition to the statute-perhaps they will persuade the court to follow the reasoning of the court that did not approve the statute,” he wrote. “However, when the defendant defends constitutional rights in a defensive manner in private law enforcement operations, he is not entitled to attorney fees, and even those who wish to gain the upper hand in constitutional opposition may have to bear the legal costs themselves. Will lead to statutory compliance.”
There is a lot of speculation that the unique legal structure of Texas law may be equally easy to apply to other areas where legislators wish to limit the specific rights guaranteed by court rulings.
For example, some have suggested that states where most residents disagree with the Supreme Court’s ruling on handgun bans might enact private litigation rights against gun dealers who sell guns. The point is not to win the debate about the constitutionality of the regulations, but to enforce compliance anyway.
Seago of the Right to Life in Texas said that the “emphasis” of his organization is that the wider impact of using this novel legal structure is not a big issue, but the organization welcomes the opportunity to resolve any issues in court.
“This question assumes that you are heading towards a conflict of our federalist principles. But it is an important legal question that should be answered and not avoided just because it is a new question,” he said.