The recently enacted Texas Abortion Law forbids abortion after a fetal heartbeat is detected, but it forbids state officials from enforcing the law. Instead, any person can sue anyone who performs such a procedure and sue anyone who aids or abets the proscribed medical care. Liability for those who aid or abet is far reaching because the Fetal Heartbeat Act makes people liable “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation” of the law.

Everyone who works in an abortion clinic potentially faces damages, from the receptionist to the janitor, even if they do not know that illegal abortions are performed. And that potential will no doubt close facilities. Would you work in such a clinic with the possibility of being subject to at least $10,000 damages for every performed procedure? (News reports have stated that each abortion after a fetal heartbeat is subject to damages of $10,000, but the act sets that amount as a minimum. The law states that successful claimants shall be awarded “statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced” after a fetal heartbeat or for each such abortion that a defendant aided or abetted. The statute gives no maximum or provide any method for determining damages beyond $10,000.) The law places no limitation on the number of defendants who can be sued for each abortion other than stating that an action cannot be brought against the woman who got the abortion. Claimants have every incentive to cast a broad net for defendants. Doesn’t the landlord who leases space to a clinic aid or abet the abortion? Doesn’t the person who maintains the elevators in the building aid or abet? And so on. Until such situations are clarified in authoritative court decisions, the risk of liability exists for many, and the safest course for the landlord and the elevator people and the Uber drivers are to avoid any interaction with an abortion clinic.

Defendants are potentially on the hook for even more money than just the damages. The statute provides that successful claimants will be awarded court costs and attorneys’ fees. On the other hand, the statute expressly denies successful defendants attorneys’ fees. Even if a defendant wins, he or she may still have to shell out thousands to their attorneys.

The statute even finds a way to drive up the defendant’s cost of defending an action. The law provides that the action can be brought where the abortion was performed but also in the county of a Texas claimant’s residence. The most convenient place for the litigation from an objective perspective may be Houston if that is where the clinic was, but the claimant can bring it in El Paso, 750 miles away, if that is where the claimant lives, and the law strips a court from transferring the location of the suit to the more convenient location because the claim’s location “may not be transferred to a different venue without the written consent of all parties.”

For people who oppose abortion, the Fetal Heartbeat Act is a stroke of genius. First of all, it empowers millions of vigilantes to bring suits under it, a striking feature in and of itself. More remarkably, however, it’s a law that requires no enforcement in order to shut down clinics. Its vagueness as to who might be subject to it puts many people at risk. The person who has delivered medical instruments to a clinic or processed medical tests might be aiding or abetting. Remember liability is imposed even if people do not know illegal abortions are performed. Will the legions of potential aiders or abettors take the risk?

Even doctors cannot always know now whether they are violating the statute. The law provides an exception for liability if a “physician believes that a medical emergency exists that prevents compliance with this subchapter,” but it is silent as to what might constitute such an emergency or how it is to be determined. A doctor, apparently, can now only guess. (The law is also vague about a particular class of claimant. The law provides that an action “may not be brought by a person who impregnated the abortion patient through an act of rape, sexual assault, incest or other act” in violation of Texas penal laws. However, the Texas Fetal Heartbeat Act states nothing about how the criminal violation is to be determined. Can this be claimed in response to the civil action, or does it require a criminal conviction?)

A doctor has said recently that he has performed an abortion in violation of the law, and claimants seeking at least $10,000 have rushed to sue. This should give a forum for challenges to the law, and the law should then– someday–be found unconstitutional. The vigilante enforcement mechanism of the Fetal Heartbeat Act turns out to both its strength and its weakness. The abortion opponents would be happier if there were no actual enforcement as long as suits look possible, for the mere chance of enforcement against so many people is enough to shut down all Texas abortion providers. But dangle money and attention in front of the world and people will grab at it, and suits, which allow legal challenges, will be brought.

Behavior can be controlled by risk even if the risk never comes to fruition. I doubt that many, if any, of the Texas officials were thinking of Jeremy Bentham and Michel Foucault when they adopted the Fetal Heartbeat Act, but the social control effected by the law has had me thinking of the panopticon.

(concluded September 24)

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