But even those opposed to abortion should be alarmed by this law, which could draw a road map for states and localities looking to dismantle constitutional rights with impunity.
In one sense, S.B. 8 is more of the same. In recent years, states from Alabama to Ohio have tried to ban abortion in bald defiance of Roe v. Wade, and all were quickly blocked by federal courts. These are straightforward cases: The Supreme Court has reiterated for half a century that the U.S. Constitution protects the right to abortion.
But in another sense, S.B. 8 is radically different. Every other state charged government officials with enforcing the penalties for their attempted abortion bans; courts ensured those bans never took effect by prohibiting the defendant officials from enforcing them. So the Texas legislature has taken a different tack: 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.)
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. Because of racialized income disparities, inequitable access to medical care and other facets of structural racism, people of color are more likely to need abortion care; are less likely to be able to afford out-of-state travel to obtain that care; and will suffer a greater threat of maternal mortality if forced to continue pregnancies against their wishes. People living in rural areas, young people (who already face delays under Texas’s parental consent law), and Texans with lower incomes will likewise face disproportionate harm.
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.
Texas’s transparent attempt to evade judicial review is too clever by half. The legislature conscripted state court clerks and judges to do its dirty work by opening the harassing enforcement lawsuits authorized by S.B. 8 and then imposing the law’s penalties, so that’s who we’ve sued. A ruling in our favor would declare S.B. 8 unconstitutional and block it from taking effect — just as we’ve blocked every other abortion ban.
Those who care about the health and dignity of Texas patients should be outraged at this ban on abortion from the earliest days of pregnancy. But S.B. 8 should also shock anyone, in any state, who cares about any fundamental right. The Texas legislature has set fire to basic principles of constitutional governance, and its attack must be quickly extinguished.