“Is anyone willing to take that risk?” asked Mary Ziegler, a Florida State University law scholar who specializes in abortion law. “You should be ready to sue, knowing that the 5th District is not on your side, that the Supreme Court is probably not on your side, and that you could face ruinous consequences if you don’t get your way.”
Groups on both sides of the Texas abortion fight announced Thursday that they are not yet aware of any lawsuits against those who perform abortions or help someone obtain an abortion – making it difficult for anyone to challenge the law as unconstitutional.
Groups like the American Civil Liberties Union and Planned Parenthood say they are currently reviewing “any legal avenue” to stop the law enforcement – but may have few options other than recruiting someone willing to go against it violate, or await a lawsuit from an anti-adversary -abortion activist or group to initiate a challenge.
“We know anti-abortion groups are currently recruiting vigilante justice to file lawsuits against anyone they believe is violating the law,” said Julia Kaye, the lead attorney on the ACLU’s case. “It is very unlikely that we will find ourselves in a scenario where vigilante justice suits are not being filed despite providers complying with the law.”
The Supreme Court left the option of lifting the Texas ban, with the Conservative majority insisting that they do not judge the merits of the law when they rejected an emergency petition from abortion clinics to freeze the law. The question, however, is whether the court has essentially given a grace period to a law that bans access to abortion in the state for weeks or months and has asked lawmakers in other states to come up with similar measures.
Florida Senate President Wilton Simpson said Thursday that Republicans will “no question” push for a law like Texas’ at their upcoming session, and Governor Ron DeSantis promised to “pay more attention to it” In the coming weeks. Senator Jason Rapert. in the state of Arkansas he said updated a six-week abortion ban that he had previously put in place to reflect the language of Texan law. And South Dakota Governor Kristi Noem said Thursday that she would like to adjust Texas law for her state. However, many Red State parliaments would not be able to pass such laws until they convened again next year.
The ACLU and other groups have also warned that the Supreme Court’s actions could lead states to apply Texas legal logic beyond abortion and pursue similar private enforcement agreements in other areas that test constitutional boundaries.
“You can imagine a state banning the sale of weapons and empowering vigilante groups to sue gun sellers and buyers,” said Kaye of the ACLU. “You could imagine a state prohibiting certain statements in online forums and empowering anyone who sees the post to sue the person who posted it. The sky is really the limit when it comes to attacks on constitutional rights. “
However, other lawyers warned that the Supreme Court did not guarantee that it would tolerate other uses of the private lawsuit enforcement mechanism.
Jim Bopp, general counsel of National Right to Life, said he expected Texas law to lead to more state abortion restrictions, but that the legislation was counterproductive as the courts are almost certain to eliminate them along the way.
“You can be sure that you will see a lot more civil action,” said Bopp. “They would be better and more useful if they were tied to other legal forms,” he said, referring to the prohibition on abortions that are performed because of the race, sex or disability of the fetus or without parental consent.
Progressives could try to adapt the Texas model to move forward legislation on guns, hate speech, or environmental threats. But they could find themselves in a similar situation and shut down their private enforcement system in weeks or months.
Democratic leaders in the House of Representatives responded to the turmoil on Thursday by pledging to vote soon on a bill that would codify the right to abortion by protecting the Roe versus Wade in federal law. Spokeswoman Nancy Pelosi argued the move is necessary because of the likelihood that other states will follow Texas’ lead. But the Women’s Health Protection Act has almost no chance of clarifying the Senate.
With Congressional intervention unlikely, lawyers from abortion advocates took a cryptic one. under the microscope Passage Judge Stephen Breyer wrote Thursday in a dissent against the entry into force of the Texas abortion ban.
“There may be other, not entirely new, bottles of proceedings that can also adequately contain what is essentially the very old and very important legal wine: the possibility of asking the judiciary to protect a person from the violation of a constitutional right – and invasion that threatens immediate and serious injury, ”wrote the Clinton-appointed judge.
Court observers said the language was undoubtedly akin to coaching the abortion rights camp, but they said the liberal judiciary could have explained his thoughts a little more.
“It’s Delphic at best,” said Carl Tobias, a law professor at the University of Richmond, who said the passage might refer to relatively rare legal remedies known as mandamus, or prohibition. “It would help if he made it a little more specific, gave us a way and made it clear.”
Harvard law professor Laurence Tribe said Breyer appeared to be observing that there is likely a way for those seeking an abortion to defend their rights, even though suing judges to block enforcement of the ban may not the ideal mechanism is.
Breyer said, “The courts have come up with all sorts of ingenious ways to remedy all kinds of constitutional violations,” Tribe said. “The court lets the lights go out before someone flips the switch.”