Look Out For Your Neighbor:
Texas Deputizing Citizens For Abortion Law
By: Gabby C.
October 15, 2021
Photo by Clark Van Der Beken on Unsplash
Senate Bill 8, also known as the Texas Heartbeat Act, was enacted on September 1st, 2021. It is recognized as one of the strictest abortion measures, banning the procedure as early as six weeks into a pregnancy if a fetal heartbeat is detected. Although other states have passed similar laws, Texas is the first state that managed to implement a near-total ban. Due to the way the law is written, it may be difficult to challenge in court.
Contents of the Act
The Bill modifies the Texas Health and Safety Code to include rules pertaining to the performance of abortions, such as forbidding abortions after the discovery of an unborn child's heartbeat and enabling a private right of civil action against anyone who performs an abortion or knowingly engages in actions that aids the procedure of the abortion.
It permits abortions for health reasons, but the exceptions are restricted, allowing termination if the pregnancy endangers the mother's life or if the pregnancy will result in severe and irreversible damage to a critical physiological function. The law does not exempt cases of incest or rape.
Even though the Supreme Court ruled that a woman has the right to an abortion, the Texas law cannot necessarily be challenged on constitutional grounds. It is designed to make it difficult to dispute in court by keeping state officials and police officers from enforcing the law. Instead, the law gives the citizens of Texas the right to pursue civil action, effectively deputizing the citizens to sue anyone who performs or aids an abortion. If these plaintiffs successfully enforce the abortion ban, they can obtain at least $10,000. Even religious leaders who counsel a pregnant woman considering an abortion could be liable.
The Texas law dramatically expands the concept of civil action. The lawsuits would not be against the women but the abortion providers and people with the intent of aiding instead. This includes drivers such as ones that work for Uber and Lyft and family members who pay for the procedure. It is unknown how intent will be defined in the context of S.B. 8, but it will let courts decide whether the defendant had the intent to aid an abortion. Not only are citizens the ones to enforce the law, but the state is also prevented from attempting to enforce the law. S.B. 8 also allows for people to sue anyone regardless of whether they were harmed or not. This is said to be a severe extension of standing, a legal concept that determines if someone can sue another person to get compensation for an injury or harm. The abortion law does not require anyone to have such a connection to the case.
In order to allow citizens to sue an abortion provider successfully, Texas Right to Life set up a “whistleblower” website where people can anonymously submit information about anyone they believe is violating the law. Once the news of this website spread, it quickly filled with “troll” messages from Tiktok and Reddit users who were against the abortion law.
The website became crowded with memes, fake reports, and more. Eventually, GoDaddy, a web hosting firm, ended its association with the website for violating its terms of service. Texas Right to Life then moved on to another service provider called Epik. However, instead of hosting the website, Epik only redirected the website to Texas Right to Life’s homepage rather than the anonymous tipping service. It seems that the website will remain down due to its violation of third-party data collection protections, but that will not stop anyone from filing lawsuits.
The Future of S.B. 8
Now, the federal government is seeking a way to overturn the legislation after the federal appeals court, known for being conservative-leaning, permitted the enforcement of the law. Abortion rights groups are also organizing protests against this law. If this law remains standing, it will most likely pass on to other conservative states. S.B. 8 protects the state against federal court challenges by relying on the doctrine of "sovereign immunity," which means that the state cannot commit legal wrongdoing and is immune from prosecution. This, in turn, makes the Justice Department struggle to expose the law's loopholes to overturn it effectively. The Supreme Court still has the chance and power to challenge the Texas abortion law as long as it faces the court in an appropriate case.