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New Texas law opens up abortion bounty hunting

July 9, 2021, 10:07 PM UTC

An antiabortion law in Texas will soon allow any U.S. citizen to sue Texas-based abortion clinics, doctors, and anyone who aids in an abortion. If successful, the petitioner, who does not have to reside in Texas, will receive an $10,000 award and the cost for attorney’s fees. Pro-choice advocates worry that this cash prize may create a new cottage industry of aggressive antiabortion bounty hunters. 

The provision, which passed the Texas state legislature this spring, is part of a larger antiabortion bill which will ban all abortions after a doctor detects a fetal heartbeat, usually around the six-week mark. 

Many don’t know they are pregnant before six weeks. For most people, a six-week ban would stop access to abortion just two weeks after a missed period.

The law is set to take effect on Sept. 1, and lawyers for abortion clinics are unsure of how to rebuke it because the government isn’t the enforcing body. In the past, six-week bans in other states have all been eventually found unconstitutional as they’ve risen through the legal system. 

This “legal hack” could be a way to get around that. 

Typically, governmental agencies shut down or challenge abortion clinics accused of breaking the law, and the clinics then have a way to challenge the constitutionality of the state law through the courts. By deputizing Americans to sue on their own, clinics and doctors can no longer employ that method. 

An organization like Planned Parenthood would normally go to court and sue Texas Attorney General Ken Paxton before the bill is enacted, but because he is not the one enforcing the law, it has to instead wait to be sued itself. 

Opening up the ability to sue to all Americans could also inundate clinics with lawsuits, overwhelming their limited legal and monetary resources. Even if they ultimately win cases, time and money will be depleted. 

“Every citizen is now a private attorney general,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston.“You can have random people who are against abortion start suing tomorrow.”

Over 370 Texas attorneys, including county attorneys, current and former elected officials, former judges, and law professors wrote a letter to the state legislature earlier this spring expressing their concerns over the bill. 

“In an attempt to avoid a constitutional challenge that the state will likely lose, these bills are drafted to remove any state actor from enforcing them, but allow ‘any person’ to use Texas state courts to enforce compliance with 28 existing regulations and the new unconstitutional ban,” the letter read. 

The bill, said critics, is an “affront” to our system of government. “By allowing anyone in the country to sue, we would be throwing open our courthouse doors to harassing and frivolous lawsuits against doctors—putting more strain on our already overburdened court system,” said Dallas County judge Clay Jenkins in a statement.

Other Texas legal officials expressed concern that the bill was broad enough to allow sexual predators to profit off their assaults. “The bill is so extreme that it could even allow a rapist to sue a doctor for providing care to a sexual assault survivor and for the rapist to recover financial damages,” wrote Travis County attorney Delia Garza. 

While the bill does not allow convicted felons to sue, abortion rights advocates say that the bill’s wording is vague and that the majority of rapes and assaults go unreported.

Texas Gov. Greg Abbott stood behind the provision, citing his religious beliefs. 

“Our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion,” Abbott said in a bill signing ceremony in May. The legislature “worked together on a bipartisan basis to pass a bill that I’m about to sign that ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.”

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