In some ways, S.B. 8, set to take effect Sept. 1, is depressingly typical. States have tried to enact more abortion restrictions throughout the United States this year than in any year prior, and 2021 is only halfway through. A dozen states have attempted to impose bans that begin at six weeks — at which point many women do not know they are pregnant — before courts stopped them.
What makes S.B. 8 uniquely dangerous is that it empowers virtually anyone to sue not only abortion providers, but anyone “abetting” an abortion in Texas. An Uber driver who drops off a woman at an abortion clinic or a doctor who provides medical counsel to a pregnant patient are potentially fair game. The law stacks the process in favor of people who sue. Successful plaintiffs receive a bounty of at least $10,000, to be paid by the target of the suit, and recoup their legal fees. Also, a successful claimant can obtain a court order to stop an abortion or order the health center to shut down. Clinics or individuals who successfully fend off a suit get nothing.
The bill’s drafters tried to avoid court scrutiny by explicitly banning government enforcement. Instead, the bill relies on “any person” not employed by the government to bring abortion cases to court. That raises the question: Whom do the law’s opponents sue to stop it? Antiabortion advocates hope answering this is so complex that it hobbles the legal process — and they admit as much.
Lawyers warn that a wave of endless lawsuits from abortion opponents could be coming in Texas and that clinics could buckle under the resulting legal fees and pressure. “It’s really, really scary for me to imagine the people we pass through to go to work on a daily basis, who yell at us . . . now have the authority and ability to sue me at will,” said Marva Sadler, the director of clinical services for Whole Woman’s Health. Even if they never get the chance to sue, S.B. 8 may already be chilling abortion in Texas, a state of 29 million with only 22 abortion clinics. A Planned Parenthood official in the state reported that people have come to their clinics asking whether abortion is still legal
Abortion access is still a constitutional right. Judges should not tolerate Texas’s cynical efforts to restrict it via intimidation.