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A Texas law banning abortion at six weeks is set to go into effect in just a few days. And while the ban will make it nearly impossible for women to get abortions in the state, the six-week ban — abortion opponents’ garden-variety tactic of late — is not the most concerning part.
What makes this Texas statute particularly troubling is that it deputizes private citizens to actively seek out and sue people “aiding or abetting” women who are attempting to get abortions in the state of Texas. If you successfully sue that person — whether it’s an abortion provider, a pregnant woman’s friend, or even the rideshare driver who dropped her off at a clinic — you receive a $10,000 bounty.
“It’s baked-in prize money,” said Kristin Ford, the acting vice president of communications and research at NARAL Pro-Choice America.
S.B. 8 becomes law on Sept. 1, but a lawsuit filed by a coalition of abortion advocates and providers could prevent the extreme legislation from being enacted. Plaintiffs including the Center for Reproductive Rights and Planned Parenthood Federation of America filed the Whole Woman’s Health v. Jackson lawsuit in mid-July, but a judge on the 5th U.S. Circuit Court of Appeals has yet to hand down a ruling even though the law is set to take effect in just a few days.
As the clock ticks down, abortion advocates, Texas clinics and more wait with bated breath.
“It’s concerning that the judge hasn’t ruled yet and people are making preparations for what happens if the ban goes into effect,” said Elizabeth Nash, a principal policy associate at Guttmacher Institute, a pro-choice research and policy organization. It’s unusual, she added, that there has yet to be a ruling, although a preliminary injunction hearing is set for Monday.
The bill is multifaceted and rife with barriers for Texans seeking abortions and those who work as abortion providers. Beyond deputizing private citizens, the statute’s main goal is to saddle clinics with lawsuits and legal fees. Additionally, if a private citizen successfully sues a clinic, that provider is responsible for paying for the winner’s legal fees. It’s simply “a back door way to shut down clinics,” Ford said.
When the state is the enforcement mechanism, you can sue the state and say the law is unconstitutional. When the enforcement mechanism is anyone in the country — how do you build the court case to sue? Who do you sue?
Elizabeth Nash, Guttmacher Institute
The six-week ban itself is concerning for many advocates, who noted that six weeks is a period in which many people don’t yet realize they’re pregnant. The ban effectively criminalizes abortion in the state of Texas, forcing the state’s 7 million women of reproductive age to travel to neighboring states like Louisiana and Oklahoma — which, combined, only have eight clinics.
The one-way driving distance for a Texan seeking an abortion would increase from 12 miles to 248 miles, 20 times the distance, according to Guttmacher Institute. And, as with most anti-abortion legislation, it will disproportionately impact Black and brown women.
One major concern for abortion advocates is how S.B. 8 will serve to further fan the flames of anti-abortion harassment. Some anti-choice groups have already recruited volunteers to inundate abortion clinics and other pro-choice groups with lawsuits, while others like Texas Right To Life recently launched a website that asks ”pro-life whistleblowers” to anonymously submit tips on people they believe are seeking out abortions.
“They are certainly trying to gin up interest in a way that is helpful to them, financially and otherwise. It begs the question about the ways in which they stand to financially gain,” said Ford.
The most egregious and unprecedented part of this statute ― deputizing private citizens ― is the very part that will make it so hard to fight in court, experts told HuffPost. The language in the statute is deliberately vague and designed to make it difficult to bring a legal challenge.
And we’ll likely see the consequences of this whether the Whole Woman’s Health lawsuit successfully stalls S.B. 8 and there’s a fight in the 5th Circuit or it takes effect and abortion providers and others are forced to fight individual lawsuits in court.
“In this statute, the enforcement is left to anyone in the country but, specifically, excludes the state from enforcing the six-week ban,” Nash explained. “When the state is the enforcement mechanism, you can sue the state and say the law is unconstitutional. When the enforcement mechanism is anyone in the country — how do you build the court case to sue? Who do you sue?”
Under the law, anyone anywhere in the U.S. can bring a lawsuit, not just a Texas resident, which is a radical departure from the normal rules of litigation, according to plaintiffs in the Whole Woman’s Health suit.
The deliberately vague language not only poses challenges in court but threatens to have far-reaching effects outside of just Texas. If S.B. 8 becomes law, many advocates are worried that it will quickly become a blueprint for other red states looking to end legal abortion.
“Texas is a state that has passed restriction after restriction, and this is a time where other states may be looking to Texas for a new twist on abortion bans. Stopping this ban is even more important because we’re no longer just talking about the 7 million women of reproductive age in Texas,” Nash said. “At that point, the question really is… What is left of Roe?”