An in-depth look at Texas’ Abortion Restriction Law

Ayush Kumar • Staff Editor

a photo of an anti-abortion protestor and a for-abortion protestor side by side
Source: FILE - In this Nov. 30, 2005 file photo, an anti-abortion supporter stands next to a pro-choice demonstrator outside the U.S. Supreme Court in Washington. (AP Photo/Manuel Balce Ceneta)

The refusal by the supreme court to stay the new Texas law criminalizing abortion after 6-weeks of pregnancy has stirred headlines across the political spectrum. The headlines are not surprising given how strongly people on either side feel about the issue, however, what is interesting is the decision by the court to refuse to stay the ruling itself.

The court in a 5-4 ruling to refuse a stay stated that abortion providers who challenged the law in an emergency application failed to make their case in the light of complex procedural questions. The court explicitly wrote that this decision was not on the constitutionality of the Texas law and did not prevent further challenges to it. This law thus still faces legal challenges, most notable being from the Department of Justice.

As Planned Parenthood vs Casey (successor of Roe vs Wade) is the law of the land, the question is what the court means by “complex procedural questions”, which separates the Texas law from other laws.

Let us first discuss what the law entails; the law allows almost anyone to bring a civil suit against people who aid abortion patients get an abortion, which includes anyone who performs an abortion in Texas (beyond 6-weeks), aids with such abortion or intends to perform or aid with such an abortion.

It is important to note that the patient can’t be sued under the law. If the case brought is successful, then the plaintiff is awarded $10,000 and attorney fees by the court and a defendant is awarded a deterrent which may encompass a fine of sorts. Moreover, the court cannot award the defendant attorney fees even if the suit is unsuccessful.

The law’s enforcement mechanism of making citizens bounty hunters makes it difficult to sue a particular entity hence, avoiding judicial interference. However, in doing so the legislature has expanded standing in civil suits in an unprecedented manner.

Usually, in a civil suit, the plaintiff has incurred injury and sues the defendant, however, in this case, the plaintiff may not have any relation whatsoever. Thus, the Texas legislature has attempted to sideline the established constitutional right to abortion(reaffirmed Planned Parenthood vs Casey) by expanding the standing of injury.

One may wonder what other established laws can be circumvented using this approach. One, like Florida, may grant standing to student-athletes who can sue their school if it allows trans women to play; or like Tensesee where parents can sue schools if they allow trans kids to use the restroom corresponding to their gender. While discriminating against students due to their gender is a violation of Title IX of the Education Amendments of 1972, it appears that these cases have found a way around it.

The story however, is far from over. The Department of Justice has sued Texas and the argument made by the United States is precisely that since Texas has attempted to preclude every other option of review. This is a developing case and on Sept. 16 a federal judge denied the DOJ's request to further expedite hearings.

The question I leave for the reader is more so about the method adopted by Texas than about the exact ruling. I ask: Is this method of lawmaking logically sound? I do not expect you to check if it is legally sound but simply if this works logically.

If the state governments can allow citizens to sue other citizens in violation of the defendant's constitutional rights of speech, religion, etc. would it be proper? If one is to take it to the extremes, we simply could do away with every law we have. My view is that this law is extremely bizarre and flawed in its reasoning, and abuse of this legal method is almost guaranteed (if one is to discount this instance that is).

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