State Senator Bryan Hughes, the primary author of the Texas law, has said his model for the law, known as S. B. 8, was a local ordinance passed in Waskom, Texas, in 2019 that empowered residents to sue anyone who performed an abortion in the city or helped someone attain one. Unlike S.B. 8, however, the Waskom law was largely symbolic, given that the city had no clinics that actually performed abortions.
What legal issues does private enforcement raise?
The Justice Department sued Texas on Thursday, arguing that S. B. 8 was passed “in open defiance of the Constitution” and Supreme Court cases like Planned Parenthood v. Casey and Roe v. Wade. But the department’s 27-page complaint took particular issue with the law’s reliance on what it called “bounty hunters,” saying that empowering them to enforce the law was an “unprecedented scheme to insulate the state from responsibility.”
Moreover, officials claimed, S. B. 8 had essentially frozen the practice of abortion in Texas and achieved its goal of stopping the procedures without a single private lawsuit having been filed. After all, the complaint pointed out, the mere threat of litigation was enough “to make it too risky for an abortion clinic to operate” in Texas.
The department’s legal case relies on the argument that ordinary people, if and when they do file suit against abortion providers, will in effect be acting as agents of the state of Texas. What the government is asking for in its complaint amounts to a federal injunction barring everyone in the entire state from filing suits against abortion providers, which some lawyers say could be a bit far-fetched. Then again, it may not be any more far-fetched than S. B. 8 itself, which empowered everyone in the entire state to file suit.
Ultimately, legal scholars said, S. B. 8 is also likely to be challenged in another way. At some point, an abortion provider or someone else involved in the process — say, a group that funds abortions — could step forward and willingly violate the law as a calculated test case. But that could take time and have uncertain results.
“Whatever happens, it’s going to take a while,” Ms. Ziegler said. “And in the meantime, this law will be the status quo.”
Are other states adopting similar laws?
In recent days, lawmakers and executives in at least seven states have said they are considering similar statutes. Last week, Gov. Kristi L. Noem of South Dakota, a Republican, said she had directed lawyers in her office to review S. B. 8 “to make sure we have the strongest pro-life laws on the books.” Around the same time, Wilton Simpson, the Republican leader of the Florida State Senate, said that members of his chamber were already working on a statute similar to the one in Texas.
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