Texas abortion law creates a kind of bounty hunter. Here’s how it works

The New York Times
TexasWritten By: Alan Feuer © 2021 The New York Times CompanyUpdated: Sep 12, 2021, 11:46 PM IST

Abortion rights advocates demonstrate outside the Supreme Court in Washington (file photo). Photograph:(The New York Times)

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The Supreme Court declined to stop the legislation from taking effect, and so far, no one has brought a suit against an abortion provider because clinics in the state have chosen to abide by the law, which effectively bars abortions starting around the sixth week of pregnancy

The new law in Texas effectively banning most abortions has ignited widespread controversy and debate, in part because of the mechanism it uses to enforce the restrictions: deputizing ordinary people to sue those involved in performing abortions and giving them a financial incentive to do so.

The law establishes a kind of bounty system. If these vigilante plaintiffs are successful, the law allows them to collect cash judgments of $10,000 — and their legal fees — from those they sue. If they lose, they do not have to pay the defendants’ legal costs.

The Supreme Court declined to stop the legislation from taking effect, and so far, no one has brought a suit against an abortion provider because clinics in the state have chosen to abide by the law, which effectively bars abortions starting around the sixth week of pregnancy.

The enforcement provision has generated backing from those seeking to limit abortion rights but confusion and criticism among supporters of abortion rights.

“When the law first came out and I was reading it, I thought I was missing something,” said Mary Ziegler, a professor at the Florida State University College of Law who specializes in the history of reproductive law. “It almost seemed like anyone could sue anyone — and that didn’t seem right. But it was. It really is that extraordinary.”

Here are some questions and answers about the enforcement provision.

Are there other laws that use the same mechanism?

Not really — or at least not with the same scope as the Texas law.

While giving private citizens the right to file suit in lieu of — or in tandem with — criminal enforcement by state officials is a staple of medical malpractice cases and other forms of tort law, the Texas law is different.

It removes enforcement entirely from state jurisdiction and vastly expands who can sue and who can be sued over abortions. The statute, for example, permits anyone — even people who live outside Texas — to file a complaint in any court in the state if they believe an abortion has been performed. It also makes nearly everyone involved in the procedure — except for the woman who receives the abortion — liable to suits, meaning that doctors, nurses, insurance companies and even Uber drivers who help take women to clinics could be vulnerable.

According to Ziegler, the notion of using lawsuits to curb or stop abortions first emerged in the early 1990s, when a Texas pastor named Mark Crutcher created a program called Spies for Life that published manuals showing people how to use the legal system to go after abortion clinics and providers. In 1999, Louisiana passed its own law giving women who had abortions the right to sue their providers.

State Sen. Bryan Hughes, the primary author of the Texas law, has said his model for the law, known as SB 8, was a local ordinance passed in Waskom, Texas, in 2019 that empowered residents to sue anyone who performed an abortion in the city or helped someone attain one. Unlike SB 8, however, the Waskom law was largely symbolic, given that the city had no clinics that actually performed abortions.

What legal issues does private enforcement raise?

The Justice Department sued Texas on Thursday, arguing that SB 8 was passed “in open defiance of the Constitution” and Supreme Court cases like Planned Parenthood v. Casey and Roe v. Wade. But the department’s 27-page complaint took particular issue with the law’s reliance on what it called “bounty hunters,” saying that empowering them to enforce the law was an “unprecedented scheme to insulate the state from responsibility.”

Moreover, officials claimed, SB 8 had essentially frozen the practice of abortion in Texas and achieved its goal of stopping the procedures without a single private lawsuit having been filed. After all, the complaint pointed out, the mere threat of litigation was enough “to make it too risky for an abortion clinic to operate” in Texas.

The department’s legal case relies on the argument that ordinary people, if and when they do file suit against abortion providers, will in effect be acting as agents of the state of Texas. What the government is asking for in its complaint amounts to a federal injunction barring everyone in the entire state from filing suits against abortion providers, which some lawyers say could be a bit far-fetched. Then again, it may not be any more far-fetched than SB 8 itself, which empowered everyone in the entire state to file suit.

Ultimately, legal scholars said, SB 8 is also likely to be challenged in another way. At some point, an abortion provider or someone else involved in the process — say, a group that funds abortions — could step forward and willingly violate the law as a calculated test case. But that could take time and have uncertain results.

“Whatever happens, it’s going to take a while,” Ziegler said. “And in the meantime, this law will be the status quo.”

Are other states adopting similar laws?

In recent days, lawmakers and executives in at least seven states have said they are considering similar statutes. Last week, Gov. Kristi Noem of South Dakota, a Republican, said she had directed lawyers in her office to review SB 8 “to make sure we have the strongest pro-life laws on the books.” Around the same time, Wilton Simpson, the Republican leader of the Florida state Senate, said that members of his chamber were already working on a statute similar to the one in Texas.

The private enforcement mechanism was also inserted into a new gun law in Missouri that grants residents the power to sue local law departments for giving “material aid and support” to federal agents for perceived violations of the Second Amendment. Under the law, which the Justice Department has challenged, Missourians could file suit to stop local police officers from sharing data or conducting joint operations with federal agents working on gun cases.

While some on the left have talked about the notion of drafting laws empowering people to sue over issues they hold dear — like stricter gun regulations, for example — it has not risen much so far beyond social media chatter. For now, at least, Democrats have not seized on private civil enforcement as a legal strategy.