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

“If the barista at Starbucks talks to you about your abortion and it was done after six weeks, that barista has the right to sue the clinic where you performed the abortion and any other person who helped you, such as Uber -Driver who performed the abortion you there, “said Melissa Murray, law professor at New York University.

Some laws allow individuals to enforce a law even when no harm is done to them, such as the California Consumer Protection Act, which gives anyone in the state the right to sue a company for disseminating false information or other unfair business practices, said Howard M. Wasserman , Law Professor at Florida International University in Miami. It differs from Texas law in that private enforcement does not support state enforcement; it is instead a switch that he said was not good for democracy.

In addition, a Supreme Court ruling last month involving a credit reporting company dismissed the concept of people surrendering if they have not been specifically harmed. That case involved lawsuits in federal court, but Professor Wasserman said clinic attorneys would likely use it in their arguments in Texas.

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

John Seago, legislative director of Texas Right to Life, the state’s largest anti-abortion organization, said some people in the anti-abortion movement thought “this doesn’t work in federal court, so let’s try another path.”

Clinics lawyers argue that a six-week abortion ban is clearly unconstitutional and that Texas law is designed to protect the state from a challenge. Federal coverage currently extends to pregnancies up to the point when a fetus can sustain life outside the uterus, around 23 or 24 weeks, and it often takes six weeks before a woman even knows she is pregnant. Given the experience of federal courts ruling out constitutional issues, clinic lawyers say it makes sense to turn to them for remedial action. The new law, when it comes into effect, will make it much more difficult.