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Texas’ new abortion law — which bans abortions at about six weeks from the patient’s last menstrual period — rests on the actions of private citizens to enforce the law, rather than the government.
While abortion patients themselves can’t be sued under the new law, anyone who performs or aids with the abortion can be sued — and by almost anyone. Legal experts interviewed by The Texas Tribune have said the law dramatically expands the concept of a civil lawsuit and is aimed at keeping providers from using the constitutional right to an abortion under Roe v. Wade as a legal defense.
The law, a near-total ban on abortions, includes several provisions that experts say tilt the scale toward plaintiffs, including protecting serial plaintiffs who could file dozens or hundreds of cases, incentivizing civilians to sue with a $10,000 cash reward if successful and removing defendants’ ability to recoup their legal fees. If survivors of rape become pregnant and seek an abortion, those procedures could become the object of lawsuits.
The Texas Tribune annotated the provisions of the law that outline the enforcement process. Below are excerpts from the law, followed by explanations from the multiple lawyers and legal experts who were interviewed.
Civilians enforce the law through civil lawsuits.
This makes enforcement function entirely through civil lawsuits against anyone who performs, aids or intends to aid in an abortion.
The government does not enforce the abortion law.
Not only are private individuals allowed to enforce the law by suing others, but the state is prevented from enforcing or attempting to enforce the law. Experts say this is a legal maneuver designed to withstand a court challenge on the law’s constitutionality.
That’s held up so far: The Supreme Court on Sept. 1 referred to this section in its decision to reject an emergency request to block the law, noting that neither the state nor its employees have the authority to enforce it.
The high court’s order was not based on any conclusion about whether the new law is constitutional. In her dissent, Supreme Court Justice Sonia Sotomayor wrote that the Texas Legislature circumvented constitutional precedent by taking the “extraordinary step of enlisting private citizens to do what the State could not.”
Anyone can sue, regardless of whether some harm was done to them.
Legal experts have said the law is a “radical expansion” of standing, which is the legal concept that determines whether one person may sue another, usually in order to get compensation for some sort of injury or harm. The new abortion law requires no such relationship to the case in order to have standing.
It’s a very unusual measure in tort law, which is usually used to provide remedies to people who have incurred a harm. Adriana Piñon, a senior staff attorney and policy counsel for the ACLU of Texas, said the law “leaves open the courtroom door in Texas.”
Legal experts have said that the concept to expand standing is part of an emerging trend in Republican-dominated state governments that find it difficult to constitutionally prohibit actions they dislike. Instead, such governments empower civilians to sue for civil remedies.
Anti-abortion groups argue that the Texas Legislature can legitimately give anyone standing. State courts are likely to sort out whether the Texas Constitution requires someone to have sustained an injury in order to bring a lawsuit, or if, indeed, the Legislature’s permission is enough to allow people to sue for what lawyers call “generalized grievances,” or harms that weren’t committed against them personally.
Patients can’t be sued, but anyone who performs or aids with the abortion can.
This section outlines who can be sued under the law, which includes anyone who performs an abortion in Texas that does not adhere to the state rules, aids with such an abortion or intends to perform or aid with such an abortion.
The patient receiving such an abortion cannot be sued under the law, but everyone who helps that patient can be, including, for example, their doctor, driver or family member who helps pay for the procedure.
Both Uber and Lyft have said they will cover all legal fees of any of their drivers who are sued under the new law.
The state awards a $10,000 “bounty” for successful lawsuits.
If the plaintiff wins, they will be awarded at least $10,000 as well as costs and attorney fees.
Usually, legal experts said, language to describe the relief needed by the plaintiff for the harm done against them would be included in the law. Since the plaintiffs are not directly involved or harmed by the abortion performed, no relief for a harm is included.
Instead, the court will award the $10,000 to the plaintiff, costs and attorney’s fees to the plaintiff and a deterrent that the court finds acceptable to prevent future misconduct, such as fining the defendant in the case of any future violations of the law.
Critics — including President Joe Biden — have said this section plainly encourages plaintiffs to sue. Sotomayor wrote in her dissent that the cash reward effectively “deputized the State’s citizens as bounty hunters.”
The same abortion can be in court multiple times, but only paid for once.
A court cannot collect relief from the same defendant for the same abortion more than once. For example, 10 different plaintiffs could sue one abortion provider for a single abortion, but only one could collect damages.
The law does not protect a defendant from having to fight off multiple lawsuits for the same abortion and being forced to defend themselves (costing time and money) as each case progresses.
Plaintiffs have four years to sue.
A lawsuit must be brought within four years of when the abortion was performed. It is common in Texas to allow a tort claimant four years to sue, lawyers in Texas said.
The law tries to limit defenses to keep legal challenges narrow.
The law limits the arguments that the defendant can use in court. It bars defenses including ignorance, belief that the law is unconstitutional, whether the provider had the consent of the patient to perform the abortion and whether the lawsuit will violate the constitutional rights of the patient.
Legal experts said that attempting to bar the defense from making an argument that the law is unconstitutional likely will be difficult to enforce.
Serial plaintiffs are protected to litigate each of their cases.
If one plaintiff brings hundreds of lawsuits against different clinics across Texas with the same allegations and they lose the first case, the other providers being sued over the same charge by the same plaintiff can’t rely on that first case to stop the litigation. The protection is known as “non-mutual issue or claim preclusion” and takes away another potential defense for defendants.
“Every case is a new beginning under this statute,” said David Coale, an appellate lawyer in Texas.
“It tilts the field, and who knows how much, but like a lot of things in this statute, if you put enough fingers on the scale, all of a sudden it gets tilted,” he said.
The burden of proving the abortion was intended to be lawful is on the defendant.
This section outlines the arguments that defendants may use, including that they reasonably believed that the physician performing or inducing the abortion had complied or would comply with the law.
The burden of proving that they reasonably believed the abortion was lawful is on the defendant.
The defendant can never recoup their costs or attorney’s fees.
This bars the court from awarding costs or attorney’s fees back to the defendant even if the defendant successfully wins the lawsuit.
Many legal experts have pointed out how this clearly slants the law in the plaintiff’s favor because if the plaintiff wins, they are guaranteed to recoup costs and attorney’s fees in addition to the cash reward.
A rapist can’t sue, but someone else can sue over an abortion provided to a survivor of rape.
This section prevents providers or people who assist with an abortion from being sued by a patient’s rapist. If the patient was raped, sexually assaulted or a victim of incest, the perpetrator cannot sue over the abortion performed.
However, the law does not prevent other people from suing over that particular abortion, even if the pregnancy occurred as a result of rape, sexual assault or incest.
It also allows the person who impregnated the patient to sue if the sex that occurred was legal. “An angry ex-boyfriend is clearly an appropriate plaintiff under this law,” said Coale, the appellate lawyer.
The law seeks to limit providers from using Roe v. Wade as a defense.
This section seeks to prevent defendants from arguing that enforcing the law through lawsuits effectively prevents patients from getting abortions, a violation of the patients’ constitutionally protected right to an abortion.
The defendant, under the state law, cannot claim that the patient’s right to abortion is a defense for performing one, unless the Supreme Court says otherwise. Legal experts said this section is a way of trying to narrowly clarify what arguments from Roe v. Wade the defendants can use.
There are some exceptions when Roe v. Wade might be a defense — as long as that ruling isn’t overturned by the Supreme Court.
Providers could argue that they are protecting the rights of patients to seek an abortion if it is related to the “relief” awarded by the court. If the relief granted by the court would prevent people from obtaining an abortion, then that could be a valid defense.
Of course, the law also states that such a defense would not be valid if the U.S. Supreme Court overrules Roe v. Wade or Planned Parenthood v. Casey, both of which protect the constitutional right to an abortion.
Plaintiffs hold all the power over where the lawsuit is litigated.
This section allows plaintiffs to sue in the county in which they reside, which could be anywhere in the state (since anyone has standing to sue someone who provides or aids with an abortion made illegal under this law).
It also prevents the defendants from seeking to move the venue of the lawsuit to a different court unless the plaintiff agrees to the move. Several opponents of the abortion law say this could create significant expenses for the defense if lawyers have to travel and argue multiple cases across the state, rather than petitioning the court to move the venue to a centralized location or the location in which the abortion was performed.
Legal experts said this section is essentially a limit on the court’s ability to grant a change in venue, another unusual mechanism that tilts the case in favor of the plaintiff.
Disclosure: Lyft and Planned Parenthood have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
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