WASHINGTON – The Texas anti-abortion law, which was allowed to go into effect last week despite being in clear conflict with decades-old precedents set by the United States Supreme Court in the landmark Roe v. Wade decision, is a complex piece of legal engineering.

It was intentionally built to avoid initial judicial review and structured to compel people to comply with it, even if they believe it violates their constitutional rights, through fear of being bombarded with excessive legal fees that could bankrupt them.

Attorney General Merrick Garland this week ordered the Justice Department to explore “all options” to challenge Texas’s highly restrictive abortion law and to protect abortion clinics that are under attack. Many Democrats and abortion rights proponents caution, however, that while they believe the law is unconstitutional, it was crafted in a way that makes legal challenges difficult.

Senate Bill 8, as the legislation is called, makes it illegal in Texas for a doctor to perform an abortion after the sixth week of pregnancy — before most women are even aware that they are pregnant. Crucially, however, the law explicitly bans state officials from acting to enforce the law, delegating that responsibility instead to private citizens, who are eligible to recover a $10,000 judgment, plus attorney’s fees, from anyone who they can prove aided or abetted a woman seeking an abortion.

The law casts a broad net, meaning that not only doctors, but clinicians and clinic workers, and even relatives who help pay for an abortion are liable. However, the plain language of the law states that only people who “knowingly” assist someone seeking an abortion are liable, meaning that the commonly cited example of an Uber driver being exposed to a lawsuit under the bill is incorrect, experts say.

The Supreme Court last week, in a 5-4 decision, declined to block the law from coming into effect on procedural grounds, arguing that because there is no specific individual charged with enforcing the law, there is nobody who can be sued over it, and therefore, nobody the court can enjoin from enforcing it.

President Joe Biden sharply criticized the Supreme Court ruling and instructed Garland to explore ways to challenge the Texas law.

Thus far, abortion clinics in Texas have been careful to observe the new law — which makes no exceptions for rape or incest — and avoid drawing fire from self-appointed citizens or groups claiming violations of the new abortion restrictions. However, it is likely that eventually someone will defy the six-week limit on pregnancies before a procedure, leading to a constitutional test case.

Opponents furious

Opponents of the legislation have been scathing in their criticism of the Texas legislature and Republican Gov. Greg Abbott who signed the legislation.

“Texas politicians have succeeded for the moment in making a mockery of the rule of law, upending abortion care in Texas, and forcing patients to leave the state — if they have the means — to get constitutionally protected health care,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “This should send chills down the spine of everyone in this country who cares about the Constitution. We will keep fighting this ban until abortion access is restored in Texas.”

Others aimed their anger at the Supreme Court for choosing not to block enforcement of the statute.

“The Supreme Court has ignored 50 years of precedent and set back the hands of time, essentially allowing Texas to be a pre-Roe [v. Wade] state,” Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America, said in a statement. “This is a travesty for the nearly seven million women of reproductive age, and everyone who supports access to safe, legal abortion.”

Supporters claim victory

Supporters of the law, however, see it as a victory over a court system that they believe is rigged against them.

The anti-abortion movement had two main goals in advancing the legislation, said John Seago, legislative director for Texas Right to Life, a group closely involved in drafting the legislation.

“The first one was, how do we have a pro-life policy actually be enforced, when we have lawless district attorneys who are not enforcing pro-life laws,” Seago said. “The second one is these activist federal judges — how do you get around them? [They are] looking for excuses to hold up laws, even though we can win ultimately.”

Genesis of the law

The roots of S.B. 8 can be traced back to an article by a former solicitor general of the state of Texas, Jonathan F. Mitchell, which was published in the Virginia Law Review in 2018. Called The Writ-of-Erasure Fallacy, the article argued that when federal courts block enforcement of state laws, those laws are not, as popularly believed, “struck down.” Rather, they remain on the books and are simply not enforced.

That leaves room for future, and even retroactive, enforcement, if a later Supreme Court overrules a previous opinion enjoining enforcement. And, critically for this case, Mitchell theorized that a bill that provided a private cause of action in state court could continue to be enforced by private citizens, even if a federal court has enjoined state officials from enforcing it. That would remain the case unless a person sued under the law pursued an appeal all the way to the Supreme Court, and won.

“Unless and until the Supreme Court of the United States declares a statute unconstitutional, the States remain free to authorize and entertain private enforcement actions in their own courts — even after a federal district or circuit court has disapproved the statute and enjoined the State’s executive from enforcing it,” Mitchell wrote.

Mitchell was closely involved in the drafting of S.B. 8.

Private cause of action

It may not be clear to a layperson how a private individual with no connection to a person who gets an abortion — and no way to show that they have suffered personal harm because of it — can have the standing to sue in the first place.

If this were a federal law, that objection would have force. But under state law in Texas, the legislature is allowed to specifically confer standing on private individuals in certain kinds of cases if it chooses to do so. In S.B. 8, that is precisely what state legislators did.

Most states have similar rules allowing the legislature to confer standing on private citizens, which is one reason why governors and legislators in at least seven states across the country have said that they are preparing legislation similar to S.B. 8 in their states.

Fear of legal fees

The law is structured to compel compliance — even if a defendant in a potential case believes that their rights are being violated and that they would be vindicated in court — through fear of legal bills.

The law itself does not allow someone sued under it to recover legal fees from their accuser, even if they are able to demonstrate their innocence. However, it does allow the accuser to recover legal fees from the defendant in the case of a guilty verdict.

But the burden of legal fees is potentially even heavier than it seems. If Mitchell’s theory is correct, and enforcement of the law could only ever be truly blocked by a Supreme Court ruling that it is unconstitutional, that means someone who wants to challenge it is going to face years of lawsuits involving huge legal fees.

But in the United States, a defendant in a federal lawsuit who is asserting his or her constitutional rights are being violated is generally not eligible to recover legal fees.

In the law review article, Mitchell lays out the implications plainly.

“Of course, the defendants in these private enforcement actions can reassert the constitutional objections to the statute — and perhaps they will persuade the court to follow the reasoning of the courts that have disapproved the statute,” he wrote. “But a defendant has no entitlement to attorneys’ fees when he asserts his constitutional rights defensively in a private enforcement action, and the need to foot one’s own legal bills may induce statutory compliance even for those who expect to prevail on their constitutional objections.”

Boomerang effect

There has been much speculation that the unique legal structure of the Texas law might just as easily be applied to other areas in which lawmakers want to curtail specific rights that have been guaranteed by court rulings.

For example, some have suggested that states where a majority of residents disagree with the Supreme Court’s rulings on handgun bans might create a private right of action against gun dealers who sell them. The point would not be to win an argument over the constitutionality of the statute, but to compel compliance with it anyway.

Seago, of Texas Right to Life, said that the “narrow focus” of his organization is such that the broader implications of the use of this novel legal structure are not a great concern, but that the group welcomes the opportunity to resolve any issues in court.

“The question kind of assumes you are headed towards a collision in our federalist principles. But that’s an important legal question that should be answered, not avoided just because it’s a new question,” he said.

Source: Voice of America