Texas abortion vigilantes: how the ban empowers anti-choice citizens to sue

Last week, the most severe abortion restriction in the country became law in Texas. SB8 is a six-week abortion ban, which amounts to more or less an outright ban, since many people don’t know they’re pregnant until after the six-week mark. Abortion clinics in the state have estimated that the law bans somewhere between 85% and 90% of the procedures they provide.

But perhaps the most shocking part of the law is how it’s enforced: SB8 is enforced not by the state attorney general or other government officials, but by private citizens, who are encouraged to snitch on people who violate the abortion ban by filing civil lawsuits against them. (And they are promised a minimum of $10,000 in “damages” if they win the suit – what abortion rights supporters are calling a “bounty”.) The threat of litigation and financial ruin has forced clinics across the state to comply with the law, even though its core principle – banning abortion – is still unconstitutional.

This legal mechanism has made it impossible for reproductive rights groups to pre-empt the law, since they can’t name the typical state enforcers as the defendants in their suits. The supreme court has failed to intervene, arguing in a Wednesday night shadow docket decision that abortion providers didn’t sufficiently address the “complex and novel antecedent procedural questions” in their emergency appeal.

The Guardian spoke with Rupali Sharma, senior counsel and director at the Lawyering Project, who explained the legal mechanism that has allowed SB8 to go into effect and, as a practical matter, ban abortion in Texas.

The following conversation has been edited for length and clarity.

We’ve seen dozens of abortion bans get passed by state legislatures across the country, but all of them have been blocked from going into effect until now. What’s different about SB8?

In the most fundamental way, this is a six-week ban, so it shouldn’t have taken effect [because it violates Roe v Wade]. But Texas recognized that bans in other states were being enjoined [blocked by courts] and so lawmakers decided to try to prohibit the state from enforcing the law, and deputizing private residents instead, and that’s the key difference.

The way private residents enforce SB8 is by filing lawsuits against anyone they think has violated that law. That in itself is absurd, because “violating the law” means exercising your constitutional rights. But another reason the law is so absurd is because, typically when you file a lawsuit against someone you have to show that you were injured by them in some way and have a connection to them and what they did. Under SB8 you don’t have to have any connection to the person getting or providing the abortion – you just have to suspect that someone took those actions and you can file a lawsuit against them. There’s no limit on who can sue.

And those people are entitled to at least $10,000 in “damages”, which is basically a bounty.

Sometimes people get hung up on exactly what SB8 prohibits or permits. Obviously that’s important, but what it really does is – beyond even encouraging lawsuits that have anything to do with SB8 – it encourages anyone who opposes abortion access, including people outside of Texas, to sue. It incentivizes frivolous lawsuits, meaning lawsuits that target people for actions that don’t even violate SB8. The point is not to actually regulate [abortion] – the point is to stop providers from providing, isolate patients from their support networks and really intimidate and harass people who want to exercise this right. And whether the lawsuit is frivolous or not, people who get sued will have to hire an attorney and go to court, and that’s a huge financial and emotional toll. Some of the plaintiffs in [our] suit are abortion funds and other practical support funds, and they don’t have huge budgets. For them to get hauled into court would be ruinous.

What are the potential consequences for providers in particular? Could they have a hard time applying for licenses to practices in other states, for example? I know many of the providers in Texas actually fly in to perform abortions.

Physicians face some of the consequences we already talked about, in terms of not necessarily having the resources to fight a frivolous lawsuit. But there’s also the added implications for their licenses. Typically, you have to report if there are suits filed against you in a professional context, regardless of whether those suits have any basis. Before you could reasonably expect that no one would level 30 frivolous lawsuits against you, but SB8 changes that. So now we’re talking about someone who already puts their life at risk to provide care in a really hostile state, and what could happen to their professional reputation. Licensing really depends on the medical licensing boards in each state, but when you provide in hostile states people are looking for a reason to paint you as an immoral or incapable provider.

We know that clinic protesters already know the names of many providers in Texas, and write down license plates of people who enter the clinics. How present a threat are these suits for people providing abortion care?

Because the supreme court failed to step in, everyone is complying with SB8, which means providers are prevented from doing their jobs. But it doesn’t matter; they’re still going to be hit with frivolous suits. Providers, clinic staff, abortion funds and patients themselves have put a lot of work and energy into de-stigmatizing abortion over the years. They’ve really put themselves out there, knowing the risks – even before SB8 was in effect – to position abortion as the good that it is in these communities. Their names are out there, their faces are out there, because they’re proud of what they do. Our sense is that people who want to harm providers and patients have the information to do it and they’re certainly mobilized to do it.

We’ve already seen Texas Right to Life create this website that encourages its supporters to log tips and complaints about folks violating the law. Regardless of whether people are complying with SB8 – which they are – we fully expect that they’re going to get sued nonetheless.

I appreciate people wanting to understand the private enforcement mechanisms, but I also want folks to remember that this is a ban and the other stuff is just to isolate it from judicial review.

Did the supreme court decision to let the law stand basically validate that the law can be isolated from judicial review?

There was a sense that Texas succeeded momentarily, but they won’t succeed ultimately. I fully hope and expect that SB8 will eventually be struck down.

If it gets struck down will other states still try to copy it?

Absolutely. Why wouldn’t they? Usually whenever there’s a restriction you see it in five other states. [Anti-abortion lawmakers] will do anything to stop care, so why wouldn’t there be copycat laws? That’s another reason why the court needs to step in – even though Texans are the ones suffering currently, it’s not just about Texas. It’s a national strategy.

Is there anything else people should know about the way SB8 works?

I want to make sure folks understand what sort of crisis situation Texas is in right now. Patients’ appointments have been cancelled and no one in the state can get an abortion after six weeks. Maybe some people have the money to travel out of state, and have family members and friends to help them, though that doesn’t make it any less wrong. But there are people who absolutely can’t leave the state: They’re undocumented, they can’t afford to drive that far, they don’t have a reliable car, they can’t afford gas, they can’t take off of work, they can’t get childcare. They’re stuck. I want people to, for a second, focus on patients and think about what it must be like to be stuck like that.

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