The draconian Texas abortion law

A lot of attention has been paid recently to the abortion law passed in Texas that places such great restrictions on women’s right to choose that it effectively guts the US Supreme Court precedent Roe v. Wade. It prohibits abortions after a mere six weeks after the last menstrual period when many women do not even know they are pregnant and it authorizes ordinary citizens to take anyone who assists a woman to get an abortion (even like driving her to the clinic) to court and get a $10,000 reward for doing so.

The US Supreme Court, while not making a decision on the constitutionality of the law itself, allowed it to go into effect, seeming to buy the Texas Republicans’ argument that because the law does not allow the state to enforce the law but only private citizens, it has prima facie constitutionality. The anti-choice zealots in Texas are exchanging high-fives about their cleverness in crafting a law that they think will pass constitutional muster.

I was particularly interested in that the law (the text is here) seemed to violate the important issue of ‘standing’, that the only people who have the right to bring a lawsuit are those who have suffered some direct injury to themselves. Normally you cannot file suit about an action taken by others against others, however much you may be outraged by the act itself. This is necessary to prevent the courts being clogged with lawsuits.

This article in the Texas Tribune did a detailed point-by-point analysis of the law and it is extremely disturbing.

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.

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 Picon, 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.

The other features of the law that the the article discusses in detail are below and it shows how the law has been stacked heavily in favor of the anti-abortion side and makes it almost impossible to mount a defense.

  • Civilians enforce the law through civil lawsuits.
  • The government does not enforce the abortion law.
  • Anyone can sue, regardless of whether some harm was done to them.
  • Patients can’t be sued, but anyone who performs or aids with the abortion can.
  • The state awards a $10,000 “bounty” for successful lawsuits.
  • The same abortion can be in court multiple times, but only paid for once.
  • Plaintiffs have four years to sue.
  • The law tries to limit defenses to keep legal challenges narrow.
  • Serial plaintiffs are protected to litigate each of their cases.
  • The burden of proving the abortion was intended to be lawful is on the defendant.
  • The defendant can never recoup their costs or attorney’s fees.
  • A rapist can’t sue, but someone else can sue over an abortion provided to a survivor of rape.
  • The law seeks to limit providers from using Roe v. Wade as a defense.
  • There are some exceptions when Roe v. Wade might be a defense – as long as that ruling isn’t overturned by the Supreme Court.
  • Plaintiffs hold all the power over where the lawsuit is litigated.

The law will be challenged. The US department of justice has already announced that it will fight the law vigorously.

(This Modern World)


  1. ShowMetheData says

    No, it’s 6 weeks after conception. So a late period 5/10 days means you have a week of guessing if you’re pregnant -- even if that

  2. raven says

    The defendant can never recoup their costs or attorney’s fees.

    The bias against the victims is severe. Even if the defendant wins, they can’t recover their court costs or lawyer fees.
    This penalizes the defendant just for being the defendant, whether they are guilty or not.

    This law is both a bounty hunting law and a mass informer law.
    It is something that Stalin’s USSR or the East German Stasis would use.
    It will turn Texans against Texans on a mass scale.
    It’s estimated that 15% of the East Germans were informers for the State police, the Stasi.

    The Stasi created a vast web of full-time agents and part-time spies, with some historians calculating that there was one informant for every 6.5 citizens.Mar 20, 2020.

  3. Max says

    Interesting, since anyone has a standing and only one payment per defendant per offence is allowed, wouldn’t it be interesting if lets say a planned parenthood affiliated organization sued everyone involved and all the parties pleaded guilty or settled quickly with them, while tying up all the other cases. All it’ll do is tie up the courts but that is something this law is doing anyway.

  4. consciousness razor says

    re: ShowMetheData, #1
    From The Texas Tribune:

    For one, medically, the length of pregnancy is not typically measured from the date of conception. Instead, the new law notes, “pregnancy is calculated from the first day of the woman’s last menstrual period.” This statement lines up with the typical way doctors initially work to determine gestational age, according to The American College of Obstetricians and Gynecologists.


    “So on the day that you’re actually ovulating, sending out the egg, and you have a chance for conception, by convention we’re saying that you’re two weeks pregnant at that point,” said Dr. Rachel Breedlove, who practices obstetrics and gynecology at St. David’s South Austin Medical Center. “So, I think it’s really confusing for non-medical people to understand how could you be two weeks pregnant? But we’re dating it from the last period, not from the date of conception.”

    About two weeks from conception, and four weeks from their last period, someone could potentially test pregnant after missing the start of their new period. However, unless someone is intending to get pregnant or closely monitoring their period, it’s unlikely they’ll know they’re pregnant within this neat time frame.

    In the quote from Breedlove, it’s not entirely clear from the quote if she’s also starting from the first (not the last) day of the last menstrual cycle, as is stipulated in the new law. That can last up to a week (or more?), so it makes a difference. In any case, it’s a very short amount of time.

    Also worth pointing out:

    Usually the earliest that pregnancy can be detected in the uterus through ultrasound is around the five-week gestation period, Breedlove said.

    Doctors normally don’t do an ultrasound that early unless it’s a high-risk pregnancy.

    ACOG recommends receiving an ultrasound within a person’s first trimester, which is about the first 13 weeks of pregnancy, as the most accurate method to determine gestational age. Breedlove said based on the patients she sees, most come in for their ultrasound at around eight weeks. Some people also may wait even longer and receive their first ultrasound during their second trimester, or at about 18 to 20 weeks pregnant, according to the nonprofit March of Dimes, which focuses on the health outcomes of mothers and babies.

  5. Who Cares says

    They did the whole bounty thing to bypass the guaranteed law killer of “This can’t be done by government officials”.
    But isn’t that just deputizing citizens to do a government officials job?

  6. DataWrangler says

    Let’s try the good old substitution trick. Instead of “abortion” lets try “gun”. Hey Governor Newsom, I have an suggestion …

  7. consciousness razor says

    Let’s try the good old substitution trick. Instead of “abortion” lets try “gun”. Hey Governor Newsom, I have an suggestion …

    They’re way ahead of you in Missouri, but not in the way that you think. New York Times:

    At the heart of the law is an audacious declaration — that all state firearms laws “exceed” the federal government’s power to track, register and regulate guns and gun owners.

    The law, however, is as vague as it is expansive: Its authors did not focus on any specific federal law or policy, and state officials say they will not try to stop federal agents from executing raids, conducting background checks for gun buyers or enforcing existing laws, like the prohibition on gun purchases by felons.

    But the law features a provision, the first of its kind in the nation, that allows Missourians to sue local law departments that give “material aid and support” to federal agents — defined as data sharing, joint operations, even social media posts — in violation of citizens’ perceived Second Amendment rights.


    At least eight other states, including West Virginia, have recently passed similar bills, but most are more symbolic and less far-reaching than Missouri’s, and feature more explicit carve-outs for coordination between local and federal law-enforcement agencies. The Missouri law has the sharpest teeth: the provision allowing citizens to sue any local police agency for $50,000 for every incident in which they can prove that their rights were violated, provided they were not flouting state law.

    That reliance on citizens’ lawsuits — bypassing police officers and prosecutors who may be reluctant to pursue highly politicized criminal cases — represents another political strategy gaining popularity on the right, most notably in the highly restrictive Texas abortion law that the Supreme Court recently let stand.

  8. says

    The Youtube channel LegalEagles has an excellent breakdown of this law and how it and the supreme court has essentially complete control over all culture war issues.

  9. says

    As I noted elsewhere after Mexico decriminalized abortion last week, someone should start a health clinic in Nuevo Laredo (pop. ~500,000), just across the border from Texas. The Dallas/FW, Houston, Austin, and San Antonio metropolises (about 20 million total) are all within a six hour drive along the same highway. What is Greg Abattoir going to do, set up ultrasound machines on the border? Arrest or prevent women from travelling? Charge them for a “crime” that happened outside of the US?

    The fact that such a “law” places zero responsibility on those with sperm should be reason enough to nullify it. But that law could legalize rape and the republicans would support it. It speaks poorly of the US court system that two sexual harassers (one a financial criminal and one an attempted rapist) can’t be removed for their crimes, nor an incompetent for her lack of qualifications.

  10. lanir says

    I watched the LegalEagle video about this as well. Part of what stood out to me is that it removes as a defense any law that is overturned later. I’m not in any way familiar with the legal profession but this makes me wonder if that part of the law is also new and novel. It makes it sound like you have to just guess at what any court will do later on and cannot depend upon existing case law and precedent to determine whether you can be found liable or not.

    That alone sounds like it upends basically everything the courts tend to stand for so how that’s supposed to work is beyond me. This thing seems like a building constructed of frozen sewer sludge painted over with sealant and bright colors. Everyone knows the flaw with the idea but Republicans are more than happy to pretend it’s a livable home, preferably for someone poorer than them. But it’s getting warmer and in the end the whole thing is going to be very, very nasty. Which isn’t a mistake in the design, it’s the entire point.

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