S.B. 8 authorizes “any person” other than the government to sue someone who provides an abortion after six weeks, helps someone obtain an abortion after six weeks or “intends” to do these things. (Abortion patients themselves cannot be sued.)
(Note that an Uber or taxi driver or anyone who helps a woman such as a physician or counselor to get an abortion can be sued for large sums of money which creates a huge chilling effect.)
This means that any antiabortion activist, ex-boyfriend, disapproving neighbor or random stranger can sue. And, to incentivize a flood of lawsuits, S.B. 8 offers up a bounty of at least $10,000 per violation proven, payable by the abortion provider or assister to the person who sued them.
The Texas legislature clearly saw this army of private enforcers as a win-win: By encouraging vigilante lawsuits against anyone who helps abortion patients obtain care, the legislature hopes to stop abortions entirely. And, by sidelining the government officials that federal courts typically enjoin to prevent abortion bans from taking effect, Texas is shamelessly attempting to evade constitutional accountability.
But S.B. 8’s malice does not stop there. Once abortion providers and supporters are dragged into state courts, S.B. 8 then changes the courthouse rules to make these lawsuits as costly and burdensome as possible. For instance, S.B. 8 allows suits to be brought in any of Texas’s 254 counties and bars the courts from transferring the case to a more appropriate location. A physician who provides abortions in El Paso, for example, might have to fly across the state to Houston to defend themselves against an ideologue or stranger looking to force them to stop. If the vigilante prevails, they get their costs and attorney’s fees covered — but if abortion providers and assisters successfully defend themselves, they have to swallow all of their litigation costs. The law also allows abortion providers to be sued multiple times over a single abortion, while prohibiting them from defending on the ground that another court already found in their favor.
S.B. 8 is engineered to cause devastation and chaos in Texas. Abortion providers will be forced either to stop providing care after six weeks — when approximately 85 percent of Texas abortions occur today — or else risk ruinous penalties. Abortion patients will be isolated from loved ones, abortion funds, counselors, clergy and others to whom they would normally turn for advice and financial and logistical support, for fear that these allies might be sued as “aiders or abettors.” Countless Texans will suffer the pains and risks of forced pregnancy.
People of color will bear an outsized share of S.B. 8’s burdens, just as they already bear the brunt of Texas’s preexisting web of medically unnecessary abortion restrictions. (Washington Post)
What is the Immediate Affect of Texas’ Law and the Supreme Court’s Failure to Stop It?
The Court used what is termed the shadow docket (quick decisions by the Court without supportive opinion to help everyone understand the thinking of the Court) so that it would not have to address the fact that S.B.8 is patently unconstitutional and should be struck down. The Supreme Court has, up until now, held that abortions are fine in the first two trimesters and that the state has some legitimate interest to be more involved in the third trimester.
If the Court followed precedent, it would have put a quick stop to S.B.8. Instead, the Supreme Court decided 5 to 4 to allow this Texas law to stand. By failing to immediately defend Roe v Wade, the Supreme Court is signaling to Republican led states that have been itching to kill Roe v Wade, that they should create copy cat laws similar to the one passed in Texas and the Court will look kindly on that.
S.B.8 preserves the right to abortion in name only. By saying women can get an abortion but only in the first 6 weeks of pregnancy, which is before most women even know they are pregnant, S.B.8 effectively ends a woman’s right to abortion in Texas.
Abortion providers have now stopped doing abortions in Texas to avoid potential costly lawsuits.
Anti-abortion groups have already created a vigilante group to go after so called offenders. (Tik Tok activists jammed their website and Uber, Bumble and other Texas based companies are rallying against S.B.8 by speaking out against it and proclaiming they will cover any expenses incurred by drivers who are sued because they assisted women seeking abortions.)
The religious right has been working for decades to get to this moment. This is the end of Roe v Wade, at least in Texas. This is the end of a woman’s right to choose what to do with her own body– at least in Texas. There is no exception for rape or incest. Imagine being impregnated by a rapist and forced to carry to term. The Handmaid’s Tale is a reality today in the state of Texas.
Florida, Arkansas and South Dakota are already readying their copycat laws to ban abortion in their states too.
Evading Judicial Scrutiny By Using Vigilantes
The law would also have vast ramifications for our system of governance. If permitted to take effect, S.B. 8 would supply a ready blueprint for any state or locality looking to target federal rights they dislike. Today it is Texas banning abortion; tomorrow, New York could ban gun sales, permit anyone to sue gun buyers or sellers, and offer a five-figure bounty to entice endless private lawsuits. Post certain conservative sentiments on Facebook? A state could authorize lawsuits by anyone who saw your post. Same-sex couples could be sued by neighbors for obtaining a marriage license. Unpopular political groups could be barred from gathering under threat of vigilante lawsuits. The possibilities are endless. (Washington Post)
The approach to enforcement in S.B.8 is an end run around the judicial system. It relies on snitches to enforce the law, not government. It silences anyone who could counsel the woman who wants an abortion out of fear of being sued for simply providing advice.
What Will Happen Next? How About OUTRAGE?!
Four Supreme Court justices wrote dissenting opinions in which they expressed their opinions. Chief Justice Roberts joined the “libs” on the court because this is such a travesty. Justice Sotomayor wrote a furious opinion.
Justice SONIA SOTOMAYOR , called the majority’s decision “stunning,” the law “a breathtaking act of defiance,” and the situation it has engendered “untenable.” (Politico)
Biden has instructed his team to look at what can be done about S.B.8.
But the real solution we need is legislation. We need to make Roe v Wade the national law of the land. The House already has a bill that does that and it can pass in the House even if Democrats are the only ones to vote for passage. But once the bill gets to the Senate it hits the usual roadblock…you guessed it…the filibuster. Will there be 60 senators who will vote to make it the law of the land? Not likely. So, will this be the hill that the filibuster finally dies on? Stay tuned.
One thing is certain now. Abortion rights will be the leading issue for the midterm 2022 election. And this Texas law and others soon to come might just shake the sleeping giant awake– the all important suburban women (and men) voters upon which the next election will turn. They are NOT gonna like the idea that government has the right to dictate to them what to do with their private parts, their private lives and their most sensitive and personal medical decisions.
People in favor of S.B.8 are usually the same guys that say they have a First Amendment right to swagger around without a mask, without a vaccine, and with a gun that they don’t even have to conceal anymore in Texas or register or even know how to use properly. But they claim women who get pregnant, even if they are the victims of rape or incest, have no power to control what happens inside their own bodies or with their own futures. Yeah. That’s not going to go over very well in suburbia.
This could be just what the Dems needed to wake people up to decide to vote against every single Republican out there. Do these Republicans really think they just won the lottery? Maybe there’s a reason why so few Republicans are commenting on the Texas law so far. Maybe it’s the same reason Fox hosts have not commented on this law yet.
S.B.8 is a huge overreach. It could be the reason Republicans don’t get back the House and Senate in 2022 even with their draconian voting laws and unfair redistricted maps.
Update: Judge Gamble issued a temporary restraining order that stops SB 8 lawsuits. The temporary restraining order is due to expire in two weeks, but her Friday order also announced a Sept. 13 hearing which could lead to the pause on the anti-abortion group’s enforcement authority being extended.
