Texas' Anti-Abortion Law: Reflecting on Civil Litigation

In August, the Supreme Court refused to block a Texas law banning abortions after six weeks of pregnancy. The vote was 5-4, with three Trump-appointed justices joining two other conservative justices. Dissenting were conservative Chief Justice John Roberts and the court's three liberal justices. The law is the most restrictive abortion act in the U.S., banning abortions after about six weeks of pregnancy while also allowing private citizens to sue any party involved in the procedure-- including clinics, physicians, and  people who transport an individual to their appointment.

This bill greatly disadvantages individuals seeking an abortion, as many do not know they are pregnant before six weeks. Reasons for abortion are very diverse and often interconnected - some may seek the procedure for financial reasons, timing, cases of sexual assault, or a combination of different factors. Abortion is a necessary and essential healthcare procedure that should be easy to access. The tight deadline for seeking the procedure coupled with the intense practice of law enforcement by private citizens makes it virtually impossible to get an abortion in the state of Texas.

Texas’ S.B. 8 presents a creative approach to anti-abortions. The bill states that it “ shall be enforced exclusively through”...“private civil actions.” Under S. B. 8, private individuals are the ones who enforce the law because the state is prevented from doing so. Essentially, this is a legal workaround-- it effectively avoids challenges to the bill's constitutionality.  S.B. 8 was not ruled on constitutionality.  Supreme Court Justice Sonia Sotomayor wrote that the Texas Legislature circumvented constitutional precedent by taking the “extraordinary step of enlisting private citizens to do what the State could not.” Such a method of law enforcement is revolutionary, and it marks a turning point in state legislation.

Several other states have used S.B. 8 as a model to draft their own anti-abortion bills. The court decision prompted representatives in North Dakota, Mississippi, Indiana, Florida, South Dakota and Arkansas to openly declare an interest in passing similar legislation. Florida’s bill, in the style of Texas’ (That being, banning abortions after six weeks and encouraging bounty-hunter style lawsuits), has already been proposed by Rep. Webster Barnaby and is under review.

Civil Litigation in Legislature

While these are decidedly important pieces of legislation pertaining to abortion rights, this form of civil litigation reaches far beyond that singular issue. Law enforcement by private individuals preceded S.B. 8, and when it comes to socially controversial issues, it is sometimes used to disadvantage marginalized communities.

For example, in Tennessee, lawmakers passed a bill this year that facilitates employees, students and parents in recovering “monetary damages for all psychological, emotional, and physical harm suffered”. A person who prevails on a claim brought pursuant to this section is entitled to recover reasonable attorney fees and costs.” This can mean that , if a school lets a transgender individual in a bathroom when there are other people in it, private citizens may sue the institution.

Another example is how Kansas has implemented a new law involving lawsuits over mask mandates and other public health measures related to COVID-19 this year. The law permits people to go to court over mandates on face coverings, business operation restrictions, and limits on the sizes of public and religious gatherings. Its constitutionality is currently being contested by the Supreme Court.

This summer, lawmakers in Missouri passed legislation allowing individuals to sue police departments that enforce federal gun laws that are not already written in state law. A Missouri judge declined to weigh in on the constitutionality of a new state law forbidding local police from enforcing federal gun laws, with attorney general Eric Schmitt declaring he would “defend the law.”

This reflects a trend towards civil litigation - private citizens have become vehicles through which the law is enforced. Legal scholars, according to The Los Angeles Times, predict “that the law in Texas will lead to a rush of similar efforts in other states, prompting local legislators to pursue new measures on gun rights, immigration, and other divisive political issues, all in an effort to sidestep the federal government.” Evidently, the laws percolating prior to S.B. 8 and the states following in its structure work to support this supposition.

Returning to S.B. 8, abortion is an essential form of healthcare, and by barring individuals from accessing the procedure, the government puts them at greater risk. These restrictions also disproportionately affect minorities - people of color, low income communities, those with disabilities, and, in general, populations for whom legal and systemic barriers already exist are already disadvantaged when it comes to seeking abortions. Above all, it is a fundamental infringement on bodily autonomy.

Moreover, this enforcement of the law by private individuals is undoubtedly foreboding in many respects, with implications beyond bodily autonomy. To allow the law to be controlled by the people is not a fully flawed concept - however, it is used far too often to oppress and disadvantage marginalized communities when it should be used to uplift them.

A law like Texas’ S.B. 8 is dangerous - it enables private individuals to infringe upon another’s liberty under the pretense of justice. As New York senator Zellie Myrie puts it, “Texas’ new law is ingenious in its cruelty, depriving women of needed reproductive health care and turning ordinary people into bounty hunters against their neighbors.” This is an egregious display of injustice. It is in and of itself unconstitutional to infringe on another’s personal liberties and freedoms.

Editors: Evie F., Raniyah B., Adele L., Amber T.

This article was orignally published in November 2021

Image Credits: Sergio Flores/Getty Images