Citizens, Not the State, Will Enforce New Abortion Law in Texas

“If the barista at Starbucks overhears you talking about your abortion, and it was performed after six weeks, that barista is authorized to sue the clinic where you obtained the abortion and to sue any other person who helped you, like the Uber driver who took you there,” said Melissa Murray, a law professor at New York University.

Some statutes have authorized private citizens to sue to enforce a law even if they themselves are not harmed, said Howard M. Wasserman, a law professor at Florida International University in Miami. What is different about Texas’ law, he said, is that private enforcement is not in support of state enforcement; it is in lieu of it, a switch he said was not good for democracy.

What is more, a Supreme Court ruling last month involving a credit reporting company rejected the concept of people suing when they were not concretely harmed. That case involved lawsuits in federal court, but Professor Wasserman said lawyers for the clinics would probably use it in their arguments in Texas.

The most common place for clinics to challenge abortion restrictions in Texas has been federal court, where they have won more often than at the state level. Supporters of the new law say it is an attempt to argue abortion cases in the courts of the state where they originated — Texas — without anti-abortion measures immediately being suspended by a federal judge, as often happens.

John Seago, legislative director for Texas Right to Life, the largest anti-abortion organization in the state, said that some people in the anti-abortion movement thought “this was not working in federal court, so let’s try a different route.”

Lawyers for the clinics argue that a six-week abortion ban is clearly unconstitutional, and that the Texas law is designed to insulate the state from a challenge. Federal protection currently extends to pregnancies up to the point at which a fetus can sustain life outside the womb, about 23 or 24 weeks. Given that federal courts are experienced at deciding constitutional rights issues, lawyers for clinics say, it is logical to go there for relief. The new law, if it takes effect, will make that much harder.