The Texas Legislature’s new abortion law is a work of wonder.
It bans all abortion once a “fetal heartbeat” can be detected — usually after about four to six weeks after conception, when most often the woman is unaware of her pregnancy — yet it bars all officials and employees of the state, including of any subdivision of the state, from taking any steps to enforce it.
It deputizes “any person” other than the above-mentioned agents and employees of the state to file lawsuits against anyone who performs an abortion or “knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise,” if the abortion is performed after the fetal heartbeat is detected.
A science note: Calling the new law the “Texas Heartbeat Act” is something of a marketing move. The heart is not formed at this early stage, but a rhythmic pulse that is called a heartbeat can be detected by vaginal ultrasound at about six weeks of gestation from a 4-millimeter growth known as a fetal pole. This “pole” is the first visible sign of a developing embryo.
“Any person” includes not only all the citizens of Texas — with a couple of exceptions explained below — but also undocumented residents and all non-Texans. The Pope, should he choose, could file such suits, though he would have to do it in Texas courts. Or Russian trolls could file. Also, any organization or corporation.
Those filing such suits don’t need actual proof, just suspicions. Then they can go on fishing expeditions, hassling and racking up legal expenses for suspected doctors and aiders and abettors.
Those who can be sued include everyone from the doctor who performed the abortion to the receptionist who allowed the patient in, to anyone who provided transportation to the clinic, helped pay for the abortion, or in any way helped the patient.
The only one involved who cannot be sued, under the law, is the woman who obtained the abortion. The reasoning behind this is that abortion opponents have found that defining the woman getting the abortion as a murderer does not play well with the public. So they have been portraying her not as an adult person with agency over her medical condition, but as a victim of the “abortion industry.”
In a statement this weekend Elizabeth Graham, vice president of Texas Right to Life, said the group “will never back down from protecting pregnant women and preborn children from abortion.” Many women, of course, do not appreciate this “protection.”
To make things easier for those wanting to file the lawsuit, it may be filed in a variety of venues. These include the place where the abortion took place or the county of the residence of any one of the defendants who, say, contributed money for the abortion or provided transportation for the person getting the abortion. Texas residents filing lawsuits can even file in their own counties, even if the plaintiff lives in Amarillo and the abortion took place in Brownsville — a distance of nearly 800 miles. The law requires the agreement of all parties for the venue of these lawsuits to be changed.
The law requires the judge presiding over one of these lawsuits to award at least $10,000 to any winning plaintiff. There is no maximum award. In addition, the defendant must pay the legal fees and court costs of the winning plaintiff.
Should the alleged aider or abettor — or doctor — prevail, the law bars the judge from awarding them legal fees, no matter how unfounded, frivolous, or outrageous the plaintiff’s claims.
Any person suspected of being involved in an abortion under the law may be sued by an unlimited number of people or organizations scattered throughout the world, potentially resulting in extensive expenses just in filing responses to the suits, and even more if lawyers have to travel to widely scattered courthouses.
The defendants, however, would be required to pay only the bounties awarded to the first bounty hunter — I mean plaintiff — who wins a case. This could set off the legal equivalent of a land rush with the advantage going to a plaintiff who lives in a conservative town with a sternly anti-abortion judge who has a small docket.
As I mentioned above a few people are not permitted to file lawsuits under this new law. The law provides no exceptions permitting abortions for victims of rape or incest, but it does recognize that such victims exist.
The law says a lawsuit may not be brought by a person “who impregnated the abortion patient through an act of rape, sexual assault, (or) incest.” Everyone else is welcome, even encouraged, to add to the trauma of these victims.
As you can see it is a thoroughly thought-out law. It even provides for the likes of Attorney General Ken Paxton to get some publicity. He can’t take any part in the lawsuits, but he can file and boast of friend-of-the-court briefs.
The law is a revolutionary step for a Republican Party that spent years fighting “lawsuit abuse” on behalf of corporations, doctors, and insurance companies by making it harder for Texans to file lawsuits. Having capped damages for pain and suffering in many lawsuits, it now creates a lucrative new arena for lawsuits by people who have not sustained any pain and suffering with generous minimum awards and no limits.
The new law is so ingeniously crafted to deputize the masses that I think we should extend its power to other areas. I encourage you to come up with your own proposals. Here is one I propose.
The release of gases into the atmosphere by oil and gas producers through the practice of flaring is a serious environmental problem. Flaring is the release and burning of natural gas that is not economical to put into pipelines.
A recent publication by Texas A&M University estimated that oil and gas companies in Texas release about as much natural gas through flaring as Texans consume. Flaring, the paper indicated, provides about 1% of worldwide carbon dioxide emissions.
Even more concerning is the methane released through oil and gas venting practices. The Environmental Protection Agency estimates that methane — which is far more powerful in promoting global warming than carbon dioxide — makes up about 10% of greenhouse gas emissions from human activities.
Yet the Texas agency charged with regulating the release of these gases, the inappropriately named Texas Railroad Commission, is singularly ineffective in doing so.
So let’s bring in the posse. The reason oil and gas companies release all these harmful gases is that it is not economical for them to quit. So let’s make it not economical not to quit. Deputize and financially incentivize all of us to sue, just has been done with the abortion law.
This, folks, is a true right-to-life issue. People are already dying from floods and fires caused by climate change. But the suffering we see today from global warming is just a hint of what awaits the unborn.