Texas' latest anti-abortion bill should alarm anyone who cares about rule of law
After lawmakers in 2021 passed Senate Bill 8, the "Texas Heartbeat Act" that banned abortion once fetal cardiac activity was present, Texas abortions officially fell to negligible numbers. But Texas women continued getting abortions at nearly the same rate as when the procedure was legal. Abortion pills are easy to obtain and take, even in states where they are illegal. The pills are almost always effective, and have fewer serious side effects than drugs such as Viagra and penicillin.
With the Senate's recent passage of SB 2880, the 'Women and Child Protection Act,' the desperation of Texas legislators is palpable. The Protection Act would make abortion pill manufacturers, distributors, prescribers and transporters strictly liable for the death or injury of a pregnant person or fetus. Nearly any private person could bring a civil suit up to six years after the alleged abortion, seeking damages of up to $100,000. Additionally, the bill authorizes the Texas attorney general to bring a civil action on behalf of fetuses to enforce the state's criminal abortion laws.
The bill would make not only defendants but also their attorneys liable to pay the attorney's fees and costs of prevailing plaintiffs.
The corker is that the bill purports to prevent courts from finding the bill unconstitutional, whether in part or in whole. In fact, should any court dare to find any portion of the bill unconstitutional, the bill declares such a finding to be void — and SB 2880 says that any person may sue the judge or anyone following the judge's ruling and obtain at least $100,000 in punitive damages from them, among other damages and relief.
Clearly, the Texas Legislature thinks that those prescribing and supplying abortion pills to Texas women are scofflaws who need to be disciplined. But the Legislature is woefully impotent on this issue.
The Texas Heartbeat Act already permits private people to bring these sorts of 'bounty suits' against many of the defendants that SB 2880 contemplates. If the Heartbeat Act isn't working, why should SB 2880 yield greater success? Damages under the Heartbeat Act start at $10,000 rather than the $100,000 offered under SB 2880, but given that both also cover prevailing plaintiffs' attorneys fees and costs, it's hard to see how the increased bounty would spur the thousands of private suits needed to help deter illicit abortions.
The Legislature should realize that the bounty hunter tactic isn't working.
The tactic is unconstitutional. To sue for civil damages, a person must have suffered a redressable injury. Without an actual injury, a person doesn't have the right to bring a civil lawsuit seeking damages against another party. Imagine if anyone — your neighbor, a business competitor, some person on the other side of the country — could haul you into court and sue you for thousands of dollars if they learned that you did something that the Legislature decided wasn't allowed, like jaywalking or wearing a red shirt.
This is what the Heartbeat Act and SB 2880 do. They throw the bedrock constitutional principle of due process under the bus. What's more, in an outrageous attempt to circumvent the courts, SB 2880 would heavily penalize any judge who dared to find the statute unconstitutional.
Most of published decisions to date involving the Heartbeat Act, including decisions at the U.S. and Texas Supreme Courts, have concerned matters other than the bounty hunter provision. But one Texas district court has addressed the substantive issue. It held that the Heartbeat Act's enforcement mechanism is unconstitutional. Any other holding would be absurd. It would throw state courts open to anyone, potentially, to sue another party for any reason or no reason at all.
The Texas Legislature is trying to tear down the rule of law. Regardless of our views on abortion, we should all oppose this.
Laura Hermer is a professor of law at Mitchell Hamline School of Law in Saint Paul, Minn. She previously served on the faculty at the University of Texas Medical Branch and the University of Houston Law Center. She teaches and writes on health law and reproductive rights.
This article originally appeared on Austin American-Statesman: Texas' anti-abortion bill is an attack on the rule of law | Opinion
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