In this time of economic uncertainty, people are looking for ways to pad their income. Maybe they’ve decided to drive for Uber a few times a week. Maybe they’re freelance writing or selling jewelry on Etsy. Maybe they’re working in an Amazon warehouse for minimum wage while watching Jeff Bezos blast off into space.
But Texas Republicans have introduced a new line of work that should have your average evangelical Christian praising the lord: abortion snitch. And it’s a job that you can do from anywhere in the country.
Texas recently passed a law, SB 8, which does two things. First, it criminalizes performing or “aiding and abetting” an abortion after six weeks’ gestation. (Yes, that makes it a pre-viability abortion ban and therefore unconstitutional under Roe v. Wade and Planned Parenthood v. Casey.) And second, it upends the way laws are passed, enforced, and litigated—all in a bid to operate a near-total abortion ban that flouts federal law.
Not only does the law make no sense, but it’s also impossible to follow. It doesn’t explain what kind of behavior constitutes aiding and abetting an abortion. Does driving someone to an abortion clinic count? Does opening the door for someone entering an abortion clinic count? It gets even more absurd: The law says a person can be held civilly liable for aiding and abetting an abortion performed in violation of the six-week ban, whether or not they knew or should have known that the abortion was in violation of the six-week ban.
As absurd as the law sounds, I must concede that it is actually pretty clever: Historically, when Texas has enacted an unconstitutional abortion ban—and believe you me, they have passed plenty over the last decade—the Center for Reproductive Rights, Planned Parenthood Federation of America, and/or the American Civil Liberties Union, who essentially act as the lawyer-gatekeepers between abortion providers and pregnant patients in need of abortion on the one hand, and meddling politicians who want to plant a flag in the uterus of every person in this country on the other hand, would immediately file a lawsuit challenging the law. And, in most cases, a federal judge would immediately block the law, thus preserving access to abortion while the lawsuit makes its way through the courts. Texas has passed pre-viability bans and burdensome restrictions, and patients in Texas have been able to access abortion because lawyers went to court and blocked Texas Republicans from infringing on pregnant Texans’ constitutional rights.
It’s been good for pregnant patients but frustrating for anti-choice politicians who want their regressive laws of dubious constitutionality to go into effect so that clinics will close and access will be cut off while the law’s constitutionality is litigated in court over the course of several years.
So Texas Republicans came up with a new scheme: SB 8 turns over enforcement of the law to private citizens and forbids its enforcement by public officials.
This way, anyone wanting to challenge the law literally can’t. They can’t file a lawsuit against the attorney general or the head of the department of health—the traditional defendants in lawsuits like these—because public officials have no enforcement power. You can’t sue a public official for something they will never do, and which the law says they’re not allowed to do.
That’s not to say that the lawyers at CRR, PPFA, and the ACLU aren’t going to try. Last week, they filed a lawsuit on behalf of dozens of abortion providers, clergy members, nonprofit groups, and mutual aid organizations challenging the law. But since the law makes it impossible to sue anyone, lawyers for the plaintiffs decided to sue everyone: The suit names every state judge and every court clerk as a defendant because they might be called upon to help enforce the law in the future by participating in the civil lawsuits.
Texas is going back to its Wild West roots and thumbing its nose at the Constitution and the rule of law in a way few states ever have before.
I’m going to be frank: This lawsuit is bonkers. But the law it is challenging is bonkers, and you know the old saying: You gotta fight bonkers with bonkers.
It is incredibly rare for lawyers to file a lawsuit against a class of hundreds of defendants, but that’s what lawyers in this case have done because, again, they can’t sue the public officials they normally would: the head of the department of health or the attorney general or some other public official. And they must be able to sue someone.
I know, it’s enough to make your head explode, so let’s go over that again: Public officials—you know, the people who generally uphold laws and regulations—are forbidden from enforcing SB 8, but private citizens are encouraged to enforce it. To the tune of $10,000.
SB 8 allows anyone—literally anyone, including strangers!—to file a lawsuit against a person they suspect is going to either provide an abortion or help a person obtain an abortion past six weeks’ gestation, asking the court to issue an injunction stopping that person from performing or aiding and abetting the abortion. And if you file a lawsuit and win—if you successfully do your job as an abortion snitch—you’re entitled to a minimum of $10,000 in damages. Even if you suspect that someone merely intends to perform an abortion or help someone obtain an abortion, the law says you can file a lawsuit. If someone looks a little abortion-y? Just file a lawsuit. You know what they say: Better safe than abortion.
It’s ludicrous. Texas has deputized everyone in the country to be an Abortion Enforcer.
What’s even more ludicrous is that there are no consequences if your abortion radar is wrong. What if your suspicions are incorrect and the person you’re snitching on has not performed or aided and abetted an abortion and had no intention of doing so? Well fortunately for you, as Laurence Tribe and Stephen Vladeck note in the New York Times, “what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.”
So that really takes a lot of the stress out of being an abortion snitch.
“Wait a minute,” you might be thinking. “Surely, people will be disincentivized to file lawsuits because if they lose, they’ll have to pay the other side’s attorneys’ fees.”
Ha! You’d think so. Would it surprise you if I told you that Texas has also changed long-standing rules regarding attorneys’ fees? Of course it wouldn’t because you know how Texas never stops Texasing.
So here’s why that’s a big deal: Generally if you file a lawsuit and lose, you must cover the winning party’s costs. But not with this law. If you file a lawsuit against a provider and the provider wins the suit? Tough luck for them! They will have spent tens or even hundreds of thousands of dollars defending themselves for providing health care that is a constitutional right but that the state of Texas has decided violates state law—supremacy clause be damned. (The Constitution’s supremacy clause says federal law trumps state law, so Texas can’t ban abortion because abortion is a federally protected constitutional right … for now.)
Texas Republicans have approved an enforcement regime that has grave implications for the way the rule of law is supposed to work. States pass laws. Public officials enforce those laws. What Texas has proposed is some sort of state-sponsored vigilantism. Imagine if enforcement of the Second Amendment was turned over to private citizens. What if California decided to ban guns but forbade public officials from enforcing the law and simply deputized private citizens to begin stealing guns from gun owners? The slope is so slippery it’s covered in bacon grease.
The layers of nonsense involved with this bill are breathtaking. The fact that the bill permits anyone—including anti-abortion extremists—to police abortions in Texas is outrageous. There’s nothing to stop a wealthy conservative from bankrolling dozens or even hundreds of lawsuits against abortion care providers or mutual aid groups. This means that abortion providers and mutual aid groups will be pressured to avoid providing abortion care altogether since there is no way for them to know how many random anti-choice advocates are going to band together and file a dozen lawsuits against them.
There’s other procedural jiggery-pokery in the law. An abortion provider could be sued multiple times over providing a single abortion. An abortion snitch can file a lawsuit against a provider or “aider or abetter” in any county in Texas’ 254 counties, and the law prohibits the defendant from changing venue to a more convenient court. So under this law, a provider could be sued in multiple courts all over the state for providing one abortion past six weeks’ gestation.
If you want to be an abortion snitch, all you have to do is find someone loosely connected to abortion care and sue them. Is there an abortion provider who’s got you down? Sue them! Did you notice an Uber driver drop a patient off at a clinic? You get in there and sue that driver. Sick of seeing abortion funds tweeting links to fundraisers? Sue those organizations, and when you’re finished doing that, sue the people who donated to the organization.
Naturally, the people intended to be the targets of these lawsuits will likely be judgment proof (that’s legalese for not having enough assets to pay what the court says you owe), so perhaps abortion snitching isn’t the best source of passive income. Plus, you truly would have to spend tens of thousands—if not hundreds of thousands—of dollars on attorneys’ fees that you would only recoup down the line if the other side can afford it. Then again, if there’s one thing you can count on, it’s that a conservative think tank somewhere will be bankrolling these lawsuits for people.
This should concern everyone—no matter how much they hate abortion. Texas is going back to its Wild West roots and thumbing its nose at the Constitution and the rule of law in a way few states ever have before.
But that’s Texas for you—everything is bigger there.