The Texas GOP Weaponized the Courts To Stop Abortions There. And They Just Won.

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As of 12:01am Wednesday morning, Roe v. Wade was effectively overturned through inaction by SCOTUS. At issue is a draconian Texas law called S.B. 8, the most dangerous one in the nation, which bans abortions after a fetal heartbeat is detected, or at around six weeks. The Texas legislature and Governor Abbott knew and understood in enacting this law that it was patently unconstitutional under Roe and Casey, but they sought to avoid federal judicial review by creating a private enforcement regime that leverages the court system to put abortion providers out of business.

How does the insidious law do this? S.B. 8 sets up a system of vigilante enforcement, supported by $10,000 bounties and a horribly rigged set of rules that advantages very aggressive litigation to shut down abortion providers and frighten women against getting one.

First, it starts by barring normal executive officials, such as prosecutors or the health department officials, from enforcing the ban. It instead hands that off to private litigants, who can file suit against anyone they allege to have violated the law by either performing or assisting with a prohibited abortion, or even by merely intending to do so. This is the “vigilante” aspect of this law, which many have noted actually encourages family, neighbors, and co-workers to spy on one another.

Second, after throwing these cases solely into civil court, Texas courts then are empowered to issue injunctions to stop any prohibited abortions from being performed, aided or abetted. Courts are then required to award anyone who brought the action a minimum of $10,000 per abortion, payable by the person in violation of the ban. This is the rather terrifying “bounty” aspect of the new law.

Third, it makes defending these cases nearly impossible. Anyone sued under the ban can be forced to appear in any one of Texas’s 254 counties, and it prohibits transfer of venue without joint agreement of the parties (which won’t happen). It forbids the use of prior court losses under the law as evidence of things like vexatious litigation. And it imposes a harsh fee-shifting provision that imposes costs jointly and severally on the defendants and their lawyers if any of their claims are dismissed for any reason. 

As an open letter from an attorney group to the Texas House Speaker Dade Phelan noted, S.B. 8 “weaponizes the judicial system by exempting the newly created cause of action from the normal guardrails that protect Texans from abusive lawsuits and provide all litigants a fair and efficient process in our state courts.” It effectively shuts down all abortion providers in the state out of fear of ruinous litigation costs.

So this can’t be constitutional, right? Not if SCOTUS actually follows precedent. In general, a state may not outsource to private individuals the authority to enforce an unconstitutional prohibition, as that would encourage and result in end-runs around the constitution. For example, Texas once tried to pass a law to insulate white-only political primaries from federal review, but the Supreme Court properly found that was unconstitutional in Terry v. Adams back in 1953.

Further, the federal courts inherently have the power to prospectively enjoin violations of federal rights that occur within a state’s judicial system. For example, in Mitchum v. Foster decided nearly 50 years ago, the Supreme Court “long ago recognized that federal injunctive relief against a state court proceeding can in some circumstances be essential to prevent great, immediate, and irreparable loss of a person’s constitutional rights.”

That is why the silence from SCOTUS as this law ticked into effect at midnight is deafening. Presently in Texas, an unconstitutional law affecting millions of women and their health care providers was allowed to become reality. It is a shameful, abusive, and illegal law that ignores the established law of the land on abortion rights and hands all of the power over to private litigants in an intentionally rigged system.

I am watching closely to see if SCOTUS acts today, a day late. Right now, being a woman in need of an abortion or a reproductive health provider in Texas means you have a big target painted on your back.