The Texas "Heart Beat" bill that the Supreme Court declined to block last week is almost as restrictive as the Texas law that the courts overturned nearly a half a century ago in Roe vs Wade. The fact that it never the less took effect is a remarkable victory for the anti abortion cause, made possible by a innovative enforcement mechanism that relies on private litigation.
That victory, however, required embracing tactics that conservatives have long condemned. Senate Bill 8 invites lawsuits by financially well off plaintiffs who need not claim any personal injury, rigs the rules in their favor, establishes vague liability theories that threaten freedom of speech and offers a model for attacking other rights that the supreme court has said are protected by the constitution.
The Texas Law at issue is Roe prohibited abortion except when it was necessary to save the mother's life. SB 8 bans abortion after fetal cardiac activity can be detected, which happens six weeks into pregnancy, long before "viability" and before many women even realize they are expecting.
The organizations that challenge the law estimated that it would affect "at least 85% of Texas abortion patients." The only exception would be for a "medical emergency," meaning the ban applies to cases involving rape, incest, or predictably lethal fetal defects.
SB 8 allows "any person" to sue someone who performs an prohibited abortion, "aids and abets" it or "intends" to do so. While it exempts women who seek abortions from liability, potential defendants include a wide range of ancillary actors accused of facilitating the procedure.
"Aiding and abetting " abortions explicitly includes helping to pay for it and could encompass other sorts of assistance, such as driving a woman to a clinic, or watching her kids while she is there. And although SB 8 says aiding and abetting does not include speech or conduct protected by The First Amendment, its authorization of law suits based on what a defendant "intends" to do, even when he doesnt actually do it, makes that illusory in practice.
Anyone who provides information on how to obtain a post-heart beat abortion, for example, can be sued based on the allegation that they intended to facilitate the procedure. Their First Amendment defense would come into play only after they are forced to invest time and money in responding to that claim.
SB 8 makes that threat especially potent because it bars prevailing defendants from recovering their legal costs. Prevailing plaintiffs, meanwhile, are promised compensation for their expenses, along with "statutory damages", of at least $10,000 per abortion.
The law also limits the defenses available to the targets of the lawsuits it authorizes. A defendant cannot escape liability, for example, by citing a court decision deeming SB 8 unconstitutional if that ruling was subsequently overturned, even if that happened after the conduct cited by the plaintiff.
Cato institute Senior fellow Walter Olson, author of "The Litigation Explosion", and "The Rule Of Lawyers", noted that "legal conservatives used to be the sharpest critics" of methods for "turbo charging litigation", such as "the private attorney general idea, "one- way fee shifting and overbroad defendant designation", while "many legal progressives scoffed at these complaints. "The lasting lesson", Olson said is that there is no weapon introduced into legal process that will be used by only one team."
Just as conservatives have adopted litigation tactics they once viewed as a threat to the rule of law, progressives can easily adapt the SB 8 strategy for purposes conservatives will not like. Legislators could ban gun possession or "hate speech", either of which could be clearly unconstitutional under the Supreme Court's precedents, while trying to evade legal challenges by limiting enforcement to private lawsuits.
Abortion-Rights legislators could attack the anti-abortion movement by authorizing lawsuits against anyone who "intends" to facilitate the blocking of abortion clinic entrances, which arguably would include anyone who expresses the view that abortion is tantamount to murder.
Conservatives may regret sacrificing their avowed principles for short-term political gain.
Jacob Sullum, Sr editor at Reason Magazine and a columnist with the Creators Syndicate.
That victory, however, required embracing tactics that conservatives have long condemned. Senate Bill 8 invites lawsuits by financially well off plaintiffs who need not claim any personal injury, rigs the rules in their favor, establishes vague liability theories that threaten freedom of speech and offers a model for attacking other rights that the supreme court has said are protected by the constitution.
The Texas Law at issue is Roe prohibited abortion except when it was necessary to save the mother's life. SB 8 bans abortion after fetal cardiac activity can be detected, which happens six weeks into pregnancy, long before "viability" and before many women even realize they are expecting.
The organizations that challenge the law estimated that it would affect "at least 85% of Texas abortion patients." The only exception would be for a "medical emergency," meaning the ban applies to cases involving rape, incest, or predictably lethal fetal defects.
SB 8 allows "any person" to sue someone who performs an prohibited abortion, "aids and abets" it or "intends" to do so. While it exempts women who seek abortions from liability, potential defendants include a wide range of ancillary actors accused of facilitating the procedure.
"Aiding and abetting " abortions explicitly includes helping to pay for it and could encompass other sorts of assistance, such as driving a woman to a clinic, or watching her kids while she is there. And although SB 8 says aiding and abetting does not include speech or conduct protected by The First Amendment, its authorization of law suits based on what a defendant "intends" to do, even when he doesnt actually do it, makes that illusory in practice.
Anyone who provides information on how to obtain a post-heart beat abortion, for example, can be sued based on the allegation that they intended to facilitate the procedure. Their First Amendment defense would come into play only after they are forced to invest time and money in responding to that claim.
SB 8 makes that threat especially potent because it bars prevailing defendants from recovering their legal costs. Prevailing plaintiffs, meanwhile, are promised compensation for their expenses, along with "statutory damages", of at least $10,000 per abortion.
The law also limits the defenses available to the targets of the lawsuits it authorizes. A defendant cannot escape liability, for example, by citing a court decision deeming SB 8 unconstitutional if that ruling was subsequently overturned, even if that happened after the conduct cited by the plaintiff.
Cato institute Senior fellow Walter Olson, author of "The Litigation Explosion", and "The Rule Of Lawyers", noted that "legal conservatives used to be the sharpest critics" of methods for "turbo charging litigation", such as "the private attorney general idea, "one- way fee shifting and overbroad defendant designation", while "many legal progressives scoffed at these complaints. "The lasting lesson", Olson said is that there is no weapon introduced into legal process that will be used by only one team."
Just as conservatives have adopted litigation tactics they once viewed as a threat to the rule of law, progressives can easily adapt the SB 8 strategy for purposes conservatives will not like. Legislators could ban gun possession or "hate speech", either of which could be clearly unconstitutional under the Supreme Court's precedents, while trying to evade legal challenges by limiting enforcement to private lawsuits.
Abortion-Rights legislators could attack the anti-abortion movement by authorizing lawsuits against anyone who "intends" to facilitate the blocking of abortion clinic entrances, which arguably would include anyone who expresses the view that abortion is tantamount to murder.
Conservatives may regret sacrificing their avowed principles for short-term political gain.
Jacob Sullum, Sr editor at Reason Magazine and a columnist with the Creators Syndicate.
