Abortion in Texas, SB 8, and the Radical Shift in Jurisprudence
While the thrust of critique surrounding Texas Senate Bill 8 (SB 8) is often and justly aimed at its explicit anti-abortion ends, another, perhaps more juridically pointed critique reveals itself in the law’s design and in its flagrancy, for SB 8 makes no attempt at concealment or complex disguise. Its intentions are quite clear: to not only animate those with anti-abortion persuasions—incentivized as “plaintiffs” through sizable monetary reward—to seek out and punish, but to induce fear into anyone who may, even remotely, be associated or involved with aiding someone seeking abortion from acting as such. It is a law that works through fear and tears at the fabric of the society it’s supposedly meant to serve.
The ingenuity of the bill’s design, much like the phalanx, lies in its defensive shield just as much as its thrust of its offensive spear. The new law forbids any “officer or employee of a state or local governmental entity” from enforcing it, leaving abortion rights plaintiffs, who would traditionally sue a state official charged with enforcing the law, without an avenue of pursuance. Without a viable state target, abortion-rights activists are left with little to no edge with which to challenge SB 8. This is the defensive shield.
Rather than having government officers or employees act as plaintiffs, enforcement is instead transferred to a much larger, albeit unusual party, the citizenry. SB 8 permits any person, so long as they are not an employee of the state of Texas, to sue anyone who performs, aids, or abets the performance of an abortion. This “person” need not be a resident of Texas, nor have any relation to the state, they simply need to identify an aiding party and take them to court.
Traditionally, a plaintiff—or person who brings suit to a court—is a party that has been “injured” in some sense, whether physical, emotional, or otherwise. In other words, some personal stake is involved; the plaintiff has been affected by the actions of the defendant, which is why they are taking the latter to court and may—in the event of a victory—be awarded damages for said injury. Texas’ latest abortion law, however, dispenses with this relationship and instead opts for a radical expansion—nay, a radical reconceptualization—of what it means to be a plaintiff.
The reach of Texas’ latest abortion law is thin and vast. Under SB 8, a person may sue not only the doctor who provides or aims to provide an abortion but even an Uber driver who drives the patient to a clinic. Furthermore, this ‘plaintiff’ need not be a resident of Texas, have been in the state at the time of the event in question, or even know the party they are suing. Indeed, suits have already been filed by parties with no relation to either doctor or patient, some of which have come from states hundreds of miles away. The notion that anyone, anywhere, with no relation to the events or parties involved, can sue for damages for an “injury” they have not incurred upends the inherent and traditional structure of civil court. For now, the Texas law grants anyone, regardless of relation or lack thereof, standing, and with it the ability to receive monetary reward for mere identification of those involved.
There was a time not all that long ago when similar laws existed. A time when people were incentivized and emboldened to seek out and punish their neighbors. A time when those seeking the right to determine their own destiny were isolated and left helpless by the machinery of state and cultural oppression. In this sense, SB 8 likely shares more in common with the fugitive slave laws of the 18th century than it does with any precedent since. It is not a testament to moral refortification or a refrain sung to the preservation of life. It is a bounty for the new millennium, a malformation of law, and a tool of fear.
Sources:
“Civil Cases | United States Courts.” United States Courts, https://www.uscourts.gov/about-federal-courts/types-cases/civil-cases.
“Fugitive Slave Acts.” Encyclopaedia Britannica, Encyclopaedia Britannica, https://www.britannica.com/event/Fugitive-Slave-Acts.
Harper, Karen Brooks. “Major Texas Abortion Provider Resumes Procedure Lawmakers Sought to Ban | The Texas Tribune.” The Texas Tribune, The Texas Tribune, 7 Oct. 2021, https://www.texastribune.org/2021/10/07/Texas-abortion-law-providers/?%20utm_source=Sailthru&utm_medium=email&utm_campaign=Sentences%2010.8.%2021&utm_term=Sentences.
McCammon, Sarah. “What The Texas Abortion Ban Does — And What It Means For Other States.” NPR, 1 Sept. 2021,https://www.npr.org/2021/09/01/1033202132/texas-abortion-ban-what-happens-next.
“Texas Senate Bill 8.” LegiScan, https://legiscan.com/TX/text/SB8/id/2395961.
The Editorial Board. “The Texas Abortion Case That Isn’t - The Supreme Court Isn’t Hearing a Challenge to Roe v. Wade.” The Wall Street Journal, The Wall Street Journal, 31 Oct. 2021, https://www.wsj.com/articles/the-texas-abortion-case-supreme-court-roe-wade-standing-justice-department-11635706725.
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