Texas Plays Chess with Pro-Choice Pawns – Justia Verdict

The U.S. Supreme Court has, in Whole Woman’s Health v. Jackson, denied an abortion clinic’s application for a stay or, in the alternative, an injunction preventing a new (and blatantly unconstitutional) statute from going into effect. The Texas law in question empowers any private party to bring a suit against a provider or anyone else who “aids and abets” the performance or inducement of an abortion. In this column, I will consider the unusual structure of the legislation along with the hypocrisy of “conservatives” who support it.
Most anti-abortion legislation prohibits some class of abortions and threatens penalties against doctors who carry them out. This structure allows the pro-life movement to claim the legislation is pro-woman because it does not promote the punishment of women. Women are victims of abortion just like their babies (a.k.a. embryos or fetuses), while doctors are part of the “abortion industry” that greedily pressures women into terminating. The reality is that women who desperately want to end their pregnancies may experience their doctors’ unwillingness to help them as punishment. Their desperation is evident in the fact that women denied lawful access to the procedure sometimes undergo risks to self-abort. Even relatively low-risk pregnancies carry health challenges that should be undertaken only voluntarily, including the potential to trigger autoimmune diseases.
What makes the Texas law distinctive is, first, that the ban on abortion begins when the embryo’s heartbeat is detectable. What pro-life activists call a detectable heartbeat usually appears at approximately six weeks gestation, only four weeks after fertilization. At this early stage, many women have no idea they are pregnant. As a result, the Texas timetable effectively prohibits almost all abortions. And in fact the so-called heartbeat to which the legislation refers is not from an actual heart: though an ultrasound can detect pulsing cells as early as six weeks, the electrical activity or flickering cannot accurately be called a heartbeat because embryos do not yet have hearts. Cells that could someday become hearts are in that sense like embryos that could someday become people.
A second distinctive feature of the law is that instead of limiting the universe of targets to the abortion providers (who are used to being targeted and organize themselves around this ubiquitous obstacle to their work), the Texas law extends its reach to everyone who might “aid and abet” the process of terminating her pregnancy. Such defendants include anyone who pays for or reimburses a woman for the cost of the procedure (as insurance might do). An Uber driver who takes a woman to an abortion clinic or a friend who holds the woman’s hand in the waiting room before the procedure could find herself on the hook for $10,000 or more. Only a plaintiff’s imagination limits the scope of possible liability for aiding and abetting a woman seeking a thus-far-constitutionally-protected procedure. If the woman’s mother or father made the phone call setting the woman’s appointment, they too could become defendants in a Texas lawsuit. The statute says a defendant is protected from further legal exposure once he or she or it has fully paid for a particular abortion. But because the statutory amount for full payment is “not less than” $10,000, the potential liability ceiling appears to be infinitely high.
Third and finally, virtually anybody can be a plaintiff in the suit, under the statute. Literally any human other than a government official can sue the provider or “aider and abettor” for no less than $10K. If you believe that abortion is bad or you just want some money, you could sue the insurer that covered the procedure or the aunt that drove the woman to her appointment. And the law explicitly says that the belief that you are “aiding and abetting” a constitutionally protected procedure is no defense to liability. The whole setup resembles the Old-West-style posters featuring the most-wanted criminals: $500 REWARD Wanted Dead or Alive. In this incarnation, of course, the woman must be alive so that she remains pregnant and fruitful. Trigger warning for this scene.
The thing that leaps out at us when we examine the statute is a big hole: the lack of any role for government officials in enforcing the provision. Filling that hole are private actors who can enforce the law for the available bounty. The goal is to make it difficult to sue to enjoin enforcement of the statute. If government officials could arrest or fine people for violating the law, then a doctor (or Uber driver) could sue to enjoin the government’s enforcement action. But in this statute, where private actors bring causes of action, no intending “aider and abettor” can know who will come out of the woodwork to sue. Maybe a woman’s next-door neighbor feels aggrieved by the abortion, or perhaps a co-worker who notices a receipt from the clinic sees dollar signs. Opportunists have room for creativity: befriend someone at the abortion clinic by pretending to be a patient waiting for her procedure, and use that relationship to find out who helped get this woman through her ordeal. Then sue all of them. As in 1984, betrayal is a crucial part of how the government manipulates and controls the people: betrayal through the (understandable) fear of becoming a defendant, and betrayal through undercover ops.
Where does the hypocrisy come in? It begins with the fact that American “conservatives” typically favor “tort reform.” The point of such “reform” is to deny people the ability to bring lawsuits they might otherwise pursue against those who have harmed them. One common example that “conservatives” like to cite for the excesses of the tort system is the woman who sued McDonald’s for selling her hot coffee that she spilled on herself, causing burns. This example always gets a “Bro-ey” laugh—what kind of idiot is surprised that her coffee is hot? The laughter dies down a bit when people learn that the coffee was close to 200 degrees (by contrast to the 140 degrees at which people typically drink coffee at home) and that the woman suffered third-degree burns on her genitals, required hospitalizing, and took several years to heal. Tort reformers nonetheless continue to cite the McDonald’s case as proof that lawsuits have gotten out of hand. Next thing you know, you’ll be able to sue a peanut butter company because they put peanuts in their product.
Among its achievements, tort reformers have succeeded in moving Congress to pass a law shielding U.S. firearms manufacturers from most lawsuits that might have held the manufacturers responsible for harms caused by those using the manufacturers’ weapons. This means that if someone with a known history of abusing women shoots a woman to death with a gun manufactured and sold by X, X enjoys insulation from suit. Yet if you close your eyes and shoot randomly in Texas, you will likely hit someone with standing to sue an Uber driver for taking a woman to an abortion clinic. Perhaps Texas “conservatives” would become ambivalent about their positions if women started shooting themselves in the belly to terminate their pregnancies.
The hypocrisy goes further. The usual players in the game of “don’t let dying smokers sue tobacco companies” suddenly put out the welcome mat for lawsuits against people with the most tenuous (or nonexistent) connection to an abortion. The people who never met a standing doctrine they didn’t love in the federal context invite any Tom, Dick, or Harry to show up in court and collect not less than $10,000 because they just don’t feel right about a woman getting an abortion after a heartbeat that isn’t a heartbeat.
What attracts litigants to such suits? Some combination of Jesus and money. The architects of the legislation are people who claim that abortion providers are in it for the cash, though C-sections are far, far more lucrative and rarely attract gun-wielding lunatics. These are the same people who mock the idea of anyone having standing to challenge environmental degradation if they haven’t personally spent time in the particular part of the environment at issue. Heaven forbid someone with no tangible investment in something bring a lawsuit against its destruction. But if you’re a Texan, and you hate abortion, congratulations—you could win not less than $10,000! Imagine getting lung cancer and being able to sue someone who once passed you a lighter for your cigarette. That scenario would be less absurd than what Texas allows.
The Texas abortion law has something for everyone. For those who believe that a translucent, non-sentient growth in a woman’s body is a full human being, the law says yes, that tissue is a baby with the right to occupy and use the woman’s organs and blood supply for eight months unless doing so will demonstrably kill the woman. For those who wish to insulate the statute from challenge in federal court, the law effectively does that as well (as we know from the U.S. Supreme Court’s refusal to review the merits). And for those who reject the rape exception (because a “baby” should not be executed for the sins of his father), there is indeed no rape exception. Among other things, this means that a rapist could sue his victim’s friend if the friend drove the rape victim to a clinic for an abortion.
But isn’t there an upside to all this hypocrisy—the homage that vice pays to virtue? Some naïvely imagine that we will now have an easier time passing laws protecting cigarette smokers and victims of gun violence and pollution by holding tobacco companies, gun manufacturers, and polluters accountable to more people. But for the Texas law to have that implication for its fans, its fans would have to feel bound by principles. When your principle is simply that you must win, then nothing you do ever binds you to anything else.
Posted in: Reproductive Law
Tags: Abortion, Texas
Sherry F. Colb, a Justia columnist, is the C.S. Wong Professor of Law at Cornell Law School. Her most recent book, Beating Hearts: Abortion and Animal Rights (co-authored with Michael C. Dorf) addresses some of the common puzzles, themes, and challenges that animate and confront both the pro-life and animal rights movements.
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by Sherry F. Colb
by Sherry F. Colb
by Sherry F. Colb

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