The 2021 Texas Abortion Law

The Texas Legislature has passed a new law restricting abortions in Texas, and Governor Greg Abbott has signed it. Everyone, in or out of Texas, must pay attention to this law. Not only is it restrictive of abortions, but it threatens to bring on a radical change to law enforcement in America.

Since I like primary sources, here are some:

• The text of SB 8: https://legiscan.com/TX/text/SB8/id/2395961
• The text of the US Supreme Court ruling declining to block the Texas law, with dissenting opinions: https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf

From the perspective of abortion law, the central feature of the Texas law is the requirement, in Section 171.204, that “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required by Section 171.203 or failed to perform a test to detect a fetal heartbeat.” The only allowable exception is for a condition of medical emergency.

In order to avoid problems that have voided other such laws, Section 171.208 empowers “any person, other than an officer or employee of a state or local governmental entity in this state” to bring civil action against anyone who either performs an abortion, “knowingly engages in conduct which aids or abets” the performance of an abortion, or “intends to engage in” either the performance or aiding the performance of an abortion. The court shall award such a plaintiff injunctive relief preventing the acts described, statutory damages of at least $10,000 for each abortion, and costs and attorney’s fees.

The features in 171.208 are being described as innovations to get around prior objections to anti-abortion legislation, as they do not require the law officers of the state to take action. Instead, they enable any citizen to take it upon himself to legally harass abortion providers. This rightfully should be titled the Karen Enablement Clause. It is a horrible idea and would make a horrible precedent.

The idea of legal standing is meant to limit the courts to the resolution of actual disputes where the plaintiff has suffered an “injury in fact“, where the injury is actual and particular. “You injured the foundations of my faith by performing an abortion” does not constitute legal standing. The principle of legal standing keeps busybodies from using the legal system to harass those performing actions displeasing to said busybodies.

In his dissent, Chief Justice Roberts correctly identifies the key issue:

The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct.

I invite everyone else with a legislative axe to grind to introduce laws which encourage citizen enforcement, so that the Republicans behind SB 8 may rue the day they ever found this innovation.

Governor Abbott and the Republicans in the Texas Legislature are actively compiling a sorry legislative record. In addition to SB 8, their accomplishments include introducing restrictions on voting. Thinking persons are beginning to wonder how much worse off we could be with Beto O’Rourke as Governor.