03 September 2021

Texas's revolutionary law

The extraordinary thing about Texas's new anti-abortion law isn't that it bans the procedure at such an early stage of pregnancy, or that it has no rape/incest exception.  Those are common features of wingnut laws in this field.  What's extraordinary is its provision allowing any citizen to sue almost anyone even remotely involved in an abortion.

A basic fact about how lawsuits have always worked is that the party filing the suit needs to have "standing" -- that is, needs to be able to claim some kind of direct harm from the action which the suit is about.  For example, if somebody owes you money and refuses to pay, you can sue him for the money because his refusal to pay is causing you direct financial harm.  Some random stranger who just heard that the person is refusing to pay up, and isn't owed any money but simply doesn't approve of the guy's behavior, can't sue, because he isn't affected.  This is necessary to prevent the court system from being engulfed in chaos.  If people with no standing could sue over things, then any action that becomes public knowledge and which a lot of people disapprove of could trigger millions of lawsuits.  Courts routinely reject lawsuits on the grounds that the person suing does not have standing to do so.

But this is precisely the norm that the new Texas law seeks to abolish.  It explicitly gives anybody in Texas (or even elsewhere in the country) the right to sue anyone who helps a woman in the state get an abortion, even if they are completely unaffected by her decision to do so.  The purpose of this provision was to make the law hard to overturn, since it's citizens and not the state who are empowered to enforce it.  That's bizarre enough.  But granting a right to sue without real standing is revolutionary.

If this provision is allowed to stand, it's hard to see what could stop other states from using it to destroy any business or interest which is politically unpopular locally.  Blue states could pass laws allowing any uninvolved citizen to sue gun stores or manufacturers if a gun traceable to them is used in a crime.  Anti-porn nuts could be empowered to sue porn websites out of existence even if they've never been affected by material posted there.  Any kind of enterprise or activity that a state government happens not to like could be harassed into oblivion at will by passing such a law.  And remember, even private individuals can be sued without standing under the Texas law, so if it is upheld and sets precedent, any private individual in any other state who does anything which enough state legislators disapprove of could be similarly made a legal target.

Unless the Supreme Court has completely abandoned precedent and the Constitution in order to become a handmaiden of theocracy -- and a number of recent rulings on other issues have not gone the way the wingnuts hoped -- it's hard to imagine it upholding this concept in the long run.

Notwithstanding the ensuing hysterics in the blogosphere, the Court's decision this week not to "freeze" the law did not constitute a de facto overturning of Roe v Wade.  Not even close.  The majority opinion clearly stated: "In particular, this order is not based on any conclusion about the constitutionality of Texas's law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts," and it conceded that the clinics filing suit had raised "serious questions regarding the constitutionality" of the law.

If opponents of the law are smart, they'll focus on the lawsuit provision and the chaos that would result if it is upheld.  Because if it is, then the country is headed into uncharted -- and very turbulent -- legal waters.

18 Comments:

Blogger SickoRicko said...

Once again you are very good at seeing the bigger picture. However, I am a bit hysterical over this. I will keep my fingers crossed that opponents are smart in their efforts.

03 September, 2021 08:45  
Blogger Nan said...

As a woman past the child-bearing age but with four female grandchildren that are, this law horrifies me. There are multiple and untold reasons why a woman chooses abortion. To allow the average citizen to interrupt this process is simply mind-boggling.

03 September, 2021 10:15  
Blogger Lady M said...

This law is so freaking bizarre on so many levels so I hope you are right. I also hope it causes a huge exodus of single women of child bearing years from Texas.

03 September, 2021 12:05  
Blogger Mike said...

"people with no standing" That would be everyone except the pregnant woman.

03 September, 2021 15:34  
Blogger Infidel753 said...

Ricko: Thanks. The hysteria is somewhat understandable -- this law is about as bad as it gets. But we're nowhere near seeing how the story will play out yet.

Nan: It is horrifying in its intent and methods, and should dispel any doubt that the right-wingers in this country are deeply evil.

Lady M: That would serve them right. Same goes for Afghanistan.

Mike: In the moral sense of it being none of anyone else's damn business, that's certainly true. I'm looking at the legalities here, though.

04 September, 2021 00:10  
Anonymous Anonymous said...

This is a method of ratching he Overton Window even further to the right.
Also shows tendency of this court to see unconstititional actions/aws a simly a matter of definition written in sand, depending upon ideology.
This is not a step onto a sliding slope but rather a full blown landslide building momentum as its falls further into the pit of right wing/christianist fascism.
These corrupt usurpers are laying out a template that will enable them to do what they want on an ideological basis and just instructing their constituency how to write a plan to avoid pesky little things such as the Constitition, Precedent and even fundamental logic.
Honest reasoning is long gone like that of buggy whip manufactoring.
Look at record of past 5 years (or even three) and look to find any contiueing thread of sanity with the stays they granted demented donny, even when they acknowledged that what they were allowing would probably lose when argued on the basics of the law. While comparing tem to their abrupt and dismissive approach to the Biden's requests for stays which they acknowledge would probably win in open court.
Only thread of consistentcy is ideological blindness from the present dishonorable scotus.

04 September, 2021 02:25  
Blogger Infidel753 said...

That's just unsupported defeatist speculation at this point. Also, not particularly relevant to the post, which I doubt you even really read.

04 September, 2021 10:51  
Blogger Mary Kirkland said...

This law is just insane. I read on Twitter that AidAccess is willing to send any woman in Texas abortion pills for free. I'm sure that really pisses off the lawmakers.

04 September, 2021 14:38  
Anonymous Esme Cloud said...

It is horrifying, it isn't very surprising. I'm with you and Nan. Very well-written post as ever Infidel.

- Esme Cloud

04 September, 2021 17:17  
Blogger Bohemian said...

Such a slippery legal slope that it could cause an Avalanche... and I hope it does and buries the fuckers in the Texas Court System.

04 September, 2021 20:57  
Blogger Infidel753 said...

Mary K: Various organizations are trying to help -- mentioned in today's link round-up.

Esme: Thanks. It really is horrifying, like something out of dystopian science fiction.

Bohemian: We'll see. The legal challenges are just beginning.

05 September, 2021 04:15  
Blogger The Honorable, Esteemed And Distinguished Judge Dervish Sanders (A High IQ Bourgeois Elitist) said...

Even if Texas' six-week abortion ban is overturned, clinics will close (excerpt) ... Experts say that even if the law is eventually blocked, the damage will have been done. ... Just allowing this law to go into effect is ending abortion in Texas. ...critically, clinics that are sued could be shut down, particularly if they are found guilty of breaking the new law. Even if the law is ultimately overturned, reopening a closed health clinic will likely prove difficult at best.

05 September, 2021 05:55  
Blogger Daal said...

TX is the new Afghanista, especially when you add in their horrendous new voting laws...

05 September, 2021 14:13  
Blogger Infidel753 said...

Dervish: I'm sure that's part of the intent. However, if the legal right to abortion can be secured, abortion providers will go where the demand is.

Daal: In both cases it's a religious mentality which looks at the issue as an abstraction to be governed by absolute taboos, with no reference to the situations of particular actual people who are victimized by such policies.

06 September, 2021 00:28  
Blogger The Honorable, Esteemed And Distinguished Judge Dervish Sanders (A High IQ Bourgeois Elitist) said...

"abortion providers will go where the demand is".

Because profit is the primary motivator of those in the "abortion industry"? Sounds like a republican talking point to me.

Bloomberg.com: A common allegation by anti-abortion activists is that the doctors providing such services are in it for the money. "Their focus is where the dollar is. It's not protecting women", says Melissa Conway, a spokeswoman for Texas Right to Life. "Especially within the last few years, the cost of abortion services is increasing, and so it's a very profitable business". For many anti-abortion advocates, that standalone clinics provide most abortions is proof that "abortionists" are seedy characters who aim "to garner financial gain on the backs of women", as Conway puts it. Texas Right to Life and its parent organization declined multiple requests for evidence that running an abortion clinic is lucrative.

06 September, 2021 05:42  
Blogger Infidel753 said...

Oh, come on. Whether the motive is money or humane desire to provide the service or whatever, they'll still go where the demand for abortions is.

06 September, 2021 07:09  
Blogger Daal said...

The Honorable - what people say va reality are miles apart. doctors who provide abortion services risk anti-choices killing them...

06 September, 2021 15:02  
Blogger RO said...

You already know I don't speak to politics online, but I do speak loudly to the abuse of others, and this is pretty blatant. My heart is afraid of what's coming. Hope you are feeling well, and sending lots of hugs, RO

07 September, 2021 03:12  

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