Texas's Abortion Law and Its Threat to All Constitutionally Protected Rights

On September 1, Texas’s unprecedented abortion law, SB 8, went into effect. The new bill was deemed a major victory by Texas conservatives, functionally banning all abortions after “fetal cardiac activity” is detected, which can occur as early as six weeks into the pregnancy [1]. Since the ruling of Roe v. Wade in 1973 established that the U.S. Constitution protects a woman’s right to terminate her pregnancy without excessive government restriction, courts have  consistently struck down State challenges to the Roe decision (and its later modification in Planned Parenthood v. Casey) [2]. In its drafting of SB 8, Texas is overtly avoiding a direct assault on Roe by targeting those who assist in abortions rather than the women seeking them. It also explicitly prohibits state action in the enforcement of the law, instead “deputizing” private citizens and giving them the exclusive ability to bring lawsuits against people who have assisted in abortion - whether that be an abortion clinic, a doctor, or even an uber driver that transports a woman to an abortion provider [3]. While the threat that this law poses to women’s reproductive rights is chilling in its own right, the threat it poses to all constitutionally protected rights looms much larger. Texas’s new abortion law cleverly avoids the traditional assault to Roe v. Wade by removing the State government from its enforcement and  attempting to evade constitutional accountability and judicial review. 

This law could threaten the continued existence of any federally protected right by making the exercise of that right economically unfeasible. In the case of SB 8, service providers are responsible for the cost of defense (and a hefty fine and the plaintiff’s cost if they lose) [4]. Abortion clinics across Texas have already begun to shut down as they recognize the untenable economic risk they bear by providing services [5]. Although SB 8 doesn’t outright ban a woman from obtaining an abortion, it effectively removes the means to get one [6]. It’s not a leap to see how this law could serve as a blueprint for any state government looking to target rights they dislike by putting economic pressure on otherwise constitutional entitlements. For example, a state could effectively ban gun sales by permitting any citizen to sue anyone associated with the physical movement of gun components (e.g., manufacturers, bullet sellers, delivery services) for exorbitant penalties and legal fees. Similarly, a state could effectively ban free speech by allowing citizens to sue others for disseminating phrases the state adjudged offensive. Any right that is federally protected is at risk of state override if the same formula that SB 8 employs is followed. Permitting SB 8’s construction model to survive would then pose a direct repudiation of the Supremacy Clause of the Constitution, which prohibits state laws from taking precedence over federal laws [7].

The Supreme Court denied an application for injunctive relief, stating in the majority opinion that “we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts” [8]. The Supreme Court expressed that there were too many novel aspects of the case to grant injunctive relief, and their ruling in no way prevents the law from being challenged in lower courts. In fact, a federal judge recently issued a temporary injunction against any lawsuits brought under SB 8, halting the enforcement of the law [9]. However, this victory for pro-choice advocates was short lived as Texas immediately filed an appeal to the 5th U.S. Circuit Court of Appeals, and two days after the temporary injunction, the Court of Appeals dismissed it [10]. This decision is particularly consequential considering that if the law is ever reinstated, the text of SB 8 grants authorization to sue those who assisted an abortion while the temporary injunction was in place (another questionable legislative act) [11]. Texas may also feel emboldened by the upcoming Supreme Court hearing on Dobbs v. Jackson Women’s Health Organization, which addressses the issue of “whether all pre-viability prohibitions on elective abortions are unconstitutional” [12]. The removal of later term abortion as a constitutional right in the Dobbs decision would grant SB 8 significantly more standing. If the right to pre-viablility abortion loses its federal protection, the Department of Justice, or any other entity hoping to defend abortion rights, may not be able to argue that the law violates the Supremacy Clause or the 14th Amendment. 

Another major implication of SB 8 is that it doesn’t follow the principles of tort law because the aggrieved party hasn’t suffered any damages [13]. Supporters of SB 8 claim citizens have standing to sue simply because the legislature grants that right to everyone under the new law [14]. The idea of handing standing to everyone seems inherently inconsistent with the objective of tort law, which is to provide compensation for a sustained injury at the hands of someone else [15]. The standing doctrine in Texas courts says a claimant has to “have a personal interest in the enforcement of the public right distinct from and more palpable than the general public’s interest before commencing a civil action” [16]. While this makes it unclear if a claimant needs to demonstrate injury in order to sue, it is clear that a claimant requires an elevated interest in the application of the law [17]. Plaintiffs suing abortion providers don’t clearly possess a personal interest and therefore should not fall under the definition of “standing” as defined by Texas’s current doctrine. 

SB 8 is also distinguishable from other examples where the government has deputized private citizens to enforce the law. For example, the Clean Air and Clean Water Act permits civilians to sue the federal government over violations of the Act [18]. However, even in that situation, claimants must prove that they were “someone with an interest which is or may be adversely affected” in order to obtain standing [19]. Applying this to SB 8, it is unlikely that plaintiffs would prevail in demonstrating that they have an exalted interest in enforcing the abortion ban or are directly affected by a stranger’s decision to have an abortion. A supporter of the state’s ability to grant standing to any party might argue that in the case of a wrongful death claim, states possess the jurisdiction to decide who is permitted to file a suit [20]. This would be an inordinately broad application of the law and represent a complete overstep of Texas’s authority. In the case of a wrongful death claim in Texas, statutory beneficiaries are limited to surviving spouses, children, and parents - all groups who clearly fall under the category of having a “personal interest...distinct from and more palpable than the general public” [21]. By opening Pandora’s Box to this definitional expansion in the case of a wrongful death claim, states would conceivably have the power to expand standing to file a claim to a whole host of other civil issues.

Texas’s SB 8 is also designed as a run-around judicial review by not making abortion technically illegal, but making it functionally unavailable by civilly punishing those who assist someone else obtain an abortion. This abortion law has made the “enforcer” everyday citizens, which ostensibly protects Texas from directly violating Roe v. Wade’s prohibition against government action [22]. The implications of this law extend far beyond abortion rights and threatens the very structure of the U.S. Constitution. The state is handing responsibility to third parties and making them state actors that enforce their rules, effectively deputizing citizens in the absence of personal injury. The Texas Supreme Court should clarify that for a plaintiff to bring about a civil issue, the plaintiff has to prove damages were suffered, following the example set by federal law (which states the constitutional requisites for the existence of standing under Article III of the Constitution) [23]. At the very least, they should rule that a random citizen doesn't have an interest in the reproductive decisions of women greater than that of the public interest. If they fail to establish this, a larger precedent could be set for states to circumvent federally protected rights by handing enforcement power to citizens. In its untamed desire to restrict abortion rights, Texas has paved the way for other states to potentially undermine one of the foundations of our democracy: the concept of federalism.

References

[1] Neelam Bohra, “Texas Law Banning Abortion as Early as Six Weeks Goes into Effect as the U.S. Supreme Court Takes No Action,” The Texas Tribune, August 31, 2021, https://www.texastribune.org/2021/08/31/texas-abortion-law-supreme-court/.

[2] Roe v. Wade, 410 US 113 (Supreme Court 1971).

[3] “Texas SB8 | 2021-2022 | 87th Legislature,” LegiScan, https://legiscan.com/TX/text/SB8/id/2395961.

[4] Ibid.

[5] Neelam Bohra, “Fearful of Being Sued under New Law, Three of Four San Antonio Abortion Facilities Stop Offering the Procedure,” The Texas Tribune, September 7, 2021, https://www.texastribune.org/2021/09/07/texas-abortion-law-san-antonio/.

[6] Maggie Astor, “Here’s What the Texas Abortion Law Says,” The New York Times, September 9, 2021, sec. U.S., https://www.nytimes.com/article/abortion-law-texas.html.

[7] “Supremacy Clause: Current Doctrine | Constitution Annotated | Congress.Gov | Library of Congress,” https://constitution.congress.gov/browse/essay/artVI_C2_1_1_3/.

[8] Nina Totenberg, “Supreme Court Upholds New Texas Abortion Law, For Now,” NPR, September 2, 2021, sec. Law, https://www.npr.org/2021/09/02/1033048958/supreme-court-upholds-new-texas-abortion-law-for-now.

[9] Ryan Lucas, “A U.S. Judge Blocks Enforcement of Texas’ Controversial New Abortion Law,” NPR, October 6, 2021, sec. Law, https://www.npr.org/2021/10/06/1040221171/a-u-s-judge-blocks-enforcement-of-texas-controversial-new-abortion-law.

[10] Myah Ward, “Appeals Court Temporarily Reinstates Texas Abortion Law,” POLITICO, accessed October 20, 2021, https://www.politico.com/news/2021/10/08/appeals-court-temporarily-reinstates-texas-abortion-law-515744.

[11] “Texas SB8 | 2021-2022 | 87th Legislature,” LegiScan, https://legiscan.com/TX/text/SB8/id/2395961.

[12] “Dobbs v. Jackson Women’s Health Organization,” SCOTUSblog (blog), https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/.

[13] “Fundamentals of Tort Law,” https://nationalparalegal.edu/FundamentalsTortLaw.aspx.

[14]  “Texas SB8 | 2021-2022 | 87th Legislature,” LegiScan, https://legiscan.com/TX/text/SB8/id/2395961.

[15] “Tort,” LII / Legal Information Institute, https://www.law.cornell.edu/wex/tort.

[16] William V Dorsaneo Iii, “The Enigma of Standing Doctrine in Texas Courts” 28 (n.d.): 36.

[17] Ibid.

[18] “Private Enforcement of Federal Pollution Control Laws Part I,” https://elr.info/sites/default/files/articles/13.10309.htm.

[19] Ibid.

[20] Amir Tikriti, “Who Can File a Wrongful Death Lawsuit?,” www.alllaw.com, https://www.alllaw.com/articles/nolo/personal-injury/who-can-file-wrongful-death-lawsuit.html.

[21]  “Who Can File a Wrongful Death Claim in Texas? | Begum Law Group,” Begum Law Group Injury Lawyers, January 8, 2019, https://www.texaslegalgroup.com/who-can-file-a-wrongful-death-claim-in-texas/.

[22]  “Texas SB8 | 2021-2022 | 87th Legislature,” LegiScan, https://legiscan.com/TX/text/SB8/id/2395961.

[23] “Constitutional Standards: Injury in Fact, Causation, and Redressability.,” LII / Legal Information Institute, https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/constitutional-standards-injury-in-fact-causation-and-redressability.