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 rights advocates and medical providers could prevent the extreme legislation from being enacted. Plaintiffs including the Center for Reproductive Rights and the Planned Parenthood Federation of America filed the Whole Woman’s Health v. Jackson lawsuit in mid-July, but a judge on the U.S. Court of Appeals for the 5th Circuit 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 rights 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 research and policy organization that supports abortion rights. It’s unusual, she added, that there has yet to be a ruling. A preliminary injunction hearing was set for Monday, but the 5th Circuit issued an order canceling it. Plaintiffs in the lawsuit filed an emergency motion asking the 5th Circuit to allow the district court to block the law.
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?”
The six-week ban itself is concerning for many advocates, who noted that many people don’t yet realize they’re pregnant at six weeks. The ban effectively prohibits abortion in the state of Texas, forcing the state’s 7 million women of reproductive age to travel to neighboring states such as Louisiana and Oklahoma — which, combined, have only 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 the Guttmacher Institute. And, as with most anti-abortion legislation, it will disproportionately affect Black and brown women.
One major concern for abortion rights advocates is how S.B. 8 will serve to further fan the flames of anti-abortion harassment. Some anti-abortion groups have already recruited volunteers to inundate abortion clinics and abortion rights organizations with lawsuits, while others, including Texas Right to Life, have 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 abortion rights 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?”