Let’s Expand the Texas Abortion Law (concluded)

At the turn of the nineteenth century, English philosopher Jeremy Bentham proposed a design for a circular prison with the cells on the perimeter and a guard at the center. The guard could observe the prisoners, but the inmates because of blinds and other contrivances could not see the guard. Of course, the guard could only watch one a few prisoners at a time, but the inmates would not know when they were being observed. Bentham concluded that the risk of observation, as he put it, “a sort of invisible omnipresence,” would cause the prisoners to regulate their behavior to an appropriate standard, which primarily meant work.

In the 1970s, the French philosopher Michel Foucault seized what Bentham called a panopticon as a metaphor for social control using observation to promote docility and “appropriate” behavior. Without using the panopticon term, George Orwell in Nineteen Eighty-Four captured the power, and the terror, of the risk of being watched although his book had the surveillance via telescreens: “There was of course no way of knowing whether you were being watched. . . . You had to live in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.” And watched or not, behavior was controlled by the potential of observation.

The Texas abortion law does something similar. Since anyone in the world may sue to enforce the law, anyone with any contact with an abortion provider will feel as if someone is observing the interaction and seeing an opportunity, whether justified or not, to sue for damages. Since every contact with an abortion provider leads to the possibility of legal liability, the way to avoid that risk is, of course, to cut off contacts with abortion clinics. The law thus will control behavior even without enforcement. And even if the law is overturned someday, the panopticon effect of the statute will affect reproductive rights and choices until then with consequences that will go on even longer.

The Fetal Heartbeat Act is unconstitutional because it forbids abortions that Roe v. Wade and other Supreme Court precedents allow. The law is Orwellian, however, because of its vigilante enforcement and because many people cannot know when or whether they are violating the statute. Conservatives, at least some Texas ones, seem comfortable with these frightening SB 8 procedures, and perhaps will try to extend them to other arenas. Non-conservatives should be thinking along the same paths. Might the Texas law provide a template for other initiatives that non-conservatives might favor?

Gun violence might be an appropriate target. After all, gun violence harms not just those who are wounded or killed but society generally by causing widespread fear affecting the behavior of many. Perhaps we could start out with a narrow proposal. A state might create a private, civil cause of action  gainst anyone who shoots another with an assault rifle unless the shooter shows that the victim was committing a dangerous crime endangering others at the time of the shooting. As with the Texas law, government entities and officials would be forbidden from enforcing the new cause of action, but anyone else could claim under it seeking a minimum of $10,000. In addition, similar damages could be sought from anyone who aided or abetted the shooter without any need to show that the aider or abettor knew or should have known that the shooter would violate this law. As with the abortion law, the extent of aiding or abetting liability would not be immediately clear, but it could extend to those who sold the gun or the ammunition to the shooter. It might reach the manufacturer of the weapon or ammunition, and I am sure that creative attorneys would think of others to sue. 

What other problems do you see that could be addressed with a statute similar to the Texas abortion law?

Let’s Expand the Texas Abortion Law

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)

Let’s Expand the Texas Abortion Law

 I admire the Texas abortion law. The admiration does not extend to its substance, which bans abortions once a fetal heartbeat is detected, about six weeks after conception. Its substance is blatantly unconstitutional. Instead, I admire the law for its ingenious enforcement mechanism and wonder how that mechanism could be extended to other new laws. But first, what do we know about the new abortion law in Texas?

Texas Senate Bill 8 (SB 8), the Texas Heartbeat Act, states that “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” In short, the doctor must test for a fetal heartbeat and keep records of those tests.

While this provision effectively outlaws almost all abortions, SB 8’s real innovation is its enforcement mechanism. Other abortion restrictions criminalize the procedure and put enforcement in state hands. Those seeking to prevent the application of such laws have sued to prevent the government officials from enforcing the statutes. In Roe v. Wade, for example, Wade was the Dallas District Attorney, and the plaintiff asked the court to enjoin or stop him from enforcing the abortion laws.

The Texas Heartbeat Act, however, expressly forbids all state and local government entities or officials from enforcing the law. Instead, the law “shall be enforced exclusively through the private civil actions described” in the law. The law states that “any person, other than an officer or employee of a state or local governmental entity in this state [Emphasis added], may bring a civil action against any person who: performs or induces an abortion” after a fetal heartbeat or “knowingly engages in conduct that aids or abets” such an abortion “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation” of the law. A person successfully bringing such a suit 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.

 “Any person” can bring an action under SB 8. The law does not restrict claimants to Texans. Californians and New Yorkers can seek the money. That may be surprising, but even more surprising is the conservatives who enacted this law allow even undocumented migrants to be claimants. Indeed, the law on its face allows Russians and Chinese to bring the civil actions. Its breadth is breathtaking, [deleted because it seems to refer to an aborted fetal heart] but the expansiveness goes beyond the pool of people who can enforce the law; it includes a remarkable number of people who are liable under the law.

The statute authorizes an action not only against the doctor performing an abortion after detection of a fetal heartbeat, but also against anyone who aids or abets such a procedure. However, it makes a radical change to the legal concept of aiding and abetting. Liability is not limited to those who know or suspect that a prospective procedure will be illegal. Instead, the law provides for liability “regardless of whether the person knew or should have known that the abortion” would be performed after a fetal heartbeat. The aider or abettor can escape liability only if he or she “reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion had complied” or would comply with SB 8. The law, however, does not give a clue as to what constitutes a reasonable investigation. Is asking the physician sufficient? Or must a person see and be able to interpret the heartbeat test result? Or perhaps an opinion from a second physician who is not otherwise connected with the proposed abortion will be necessary. Only when, if ever, courts authoritatively define a “reasonable investigation” can abortion aiders or abettors know how to avoid liability, and until then they will have the risk of liability for violating the statute.

The risk of liability is expanded by the law’s provisions that there is no defense for reliance on a court decision overruled on appeal, “even if that court decision had not been overruled when the defendant engaged in conduct that violates” the law. For example, assume that a court has ruled that a defendant had conducted a reasonable investigation by getting a signed assurance from the physician that no heartbeat has been detected. The nurse or anyone else assisting in other abortions may wish to rely on this court ruling. But wait. The nurse can still be liable if a higher court, perhaps years later, rules that a reasonable investigation now requires more than the signed assurance. The nurse will have years of risk of liability, and there will be nothing that person can do to mitigate the risk, except, of course, stop participating in abortions altogether, which seems to be one of the purposes behind the law.

The Fetal Heartbeat Act does not define what actions fall within aiding or abetting, and no one can now know what is covered, for this is a new concept. SB 8 unmoors the terms from their accepted meanings in criminal law. A person does not aid or abet a crime unless he at least knows that a crime is being or will be committed. Donald asks you to drive him to the bank because, he says, his car is at the mechanics. You do the favor, but once inside, Donald robs the bank. Since you did not know he was going to do that, you are not guilty of aiding or abetting the robber.

The Fetal Heartbeat Act, however, makes someone liable if he “knowingly engages in conduct that aid or abets” an abortion after a fetal heartbeat “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation”[Emphasis added] of the law. The driver, who knowingly drove the car, is only liable for the bank robbery if he also knew about the intended theft, but the abortion aider is liable without any knowledge of the forbidden procedure or perhaps without any knowledge of an abortion at all.

Uber dispatches a car to pick up a passenger. A woman, not visibly pregnant, gets in and the driver transports her to 123 Abbott Drive. The driver may not know that that destination contains an abortion clinic; he may not be aware of it even when he arrives since the clinic may keep a low street profile. An abortion in violation of the statute is performed. The Uber driver has no way of knowing about that procedure. Is the Uber driver civilly liable as an aider or abettor? I aid and abet a robbery only when I consciously transport the robber to the location knowing his plans. That action, with the guilty state of mind, makes me criminally liable. No guilty state of mind, however, is required for liability under the Fetal Heartbeat Act, but only the conscious act that aids. The Uber driver has knowingly transported the woman to the location and therefore should be liable.

Perhaps it seems farfetched to make the driver and Uber pay $10,000, but the literal words of the statute apply, and until the highest court in Texas rules otherwise, Uber and the driver are both at risk for at least $10,000 in damages. The claimant who seeks damages from the physician alleging a violation of the statute has every reason to include the driver and the company in the suit since it will take the claimant and the attorney little more time and effort to name them as defendants in addition to the doctor. With this risk hanging over such businesses, soon the drivers and companies will know that 123 Abbott Drive houses an abortion clinic and will refuse to take passengers there.        

But the risk for “third parties” extends to many more than Uber drivers.

(continued Sept. 22)

Five Bullets (concluded)

          The victim in the five-bullets case opened his apartment door one afternoon. A man with a revolver fired at him and fled. Police quickly arrested the shooter who was after revenge because the victim had testified in a grand jury against the shooter’s brother about a robbery, and that brother was now in jail.

          The shooter told the police that my client, who lived in the same housing complex as the victim, had given him instructions on where to find the victim. My client told me that he had been out in the building’s yard when the shooter approached him and asked if he knew the victim. My client said yes, and the shooter asked where the victim lived. My client pointed to the building and said on the fifth floor. The shooter departed. My client said that he had never met the shooter before; he did not see the shooter with a gun; and he had no idea what the shooter was going to do.

          If this was true, my client, like the unwitting driver of the bank robber whom I had used as an example when writing about the Texas abortion law, was not an accomplice to the crime. I suspected, however, that there was a bit more to my client’s story than he was telling. He may not have met the shooter before, but the shooter was a well-known bad guy who evoked fear in the neighborhood. My client may have known the shooter by sight and been intimidated by him. Furthermore, my client may have heard the stories circulating about the victim’s testimony against the brother and at least suspected that the shooter’s inquiry was not a friendly one. Even so, however, I thought I could mount a good defense, especially since my client had never been in any trouble with the police, was an earnest student, and worked two part-time jobs to help his single mom and three siblings with family expenses.

          Alas, I was not to hear a jury announce a not-guilty verdict in what I thought was a winning case. When the shooter’s case went to trial, the prosecutors wanted my client’s testimony, and they agreed to give him immunity. It only made sense for him to accept it.

I remember this case for other reasons besides my lost opportunity for a victory. The victim after being shot somehow made it to the phone and called 911. Later, as was routine, I obtained a copy of that recording. I heard his voice reporting that he had been shot multiple times. His voice sounded calm. There were no screams or pleas for help. Just an affectless recitation of what had happened and where he was. He hung up. The recording continued with the 911 operator contacting a squad car. She said what she heard, but she added. “I don’t know. It sounded like a prank. I don’t think it happened. But I guess you have to go and check it out.” And he had five bullets in his body.

The case had yet another memorable wrinkle. Shortly after my client was arrested, a preliminary hearing was held. The victim was in a hospital, so the hearing was held there. He still had five bullets lodged in his body, three of which were in his skull awaiting surgical removal. I did not know how he survived the shooting, something I wondered about when it was my turn to question him. Multiple tubes were running in and out of his body, and it was hard to hear his responses with the numerous medical devices making different sounds. He, of course, did not know what had occurred between the shooter and my client, but in response to my query, he said he had always considered my client to be a friend, buoying my hopes for the trial that never was.

This was not as difficult as another cross-examination I once had, this one in a drug case. My client was charged with selling heroin to an undercover officer. In what was then a standard practice, the arrest was not made immediately after the sale, but weeks later, when the undercover pointed out the supposed seller to other members of his team, who then swooped in to grab the client. There was always the chance for a mistaken ID in these situations, and I won some cases on that ground but usually only if I could rather conclusively prove that my client had not made the sale. For example, I established that one client was sorting mail with many other workers at the main post office at the time of the transaction. Most often, however, these drug sales were tough to defend. The public, including jurors, generally thought that trained officers were unusually adept at making these identifications. However, data indicate that they are no better than the rest of us, and study after study have documented that mistaken identifications are one of the chief causes of wrongful convictions. My client, a street person, had no solid proof where he was at the time of the sale, and all I could do was to suggest that the undercover could not conclusively ID the seller, a defense that depended on cross-examination of the cop and almost never worked. The difficulty of that task, however, increased because the undercover between the time of the sale and trial had been shot and paralyzed in an incident unrelated to my case. He was wheeled into the courtroom on a hospital gurney with an IV drip in place. Go ahead: You try to cross-examine under these circumstances and show that that cop’s credibility could not be trusted and that there was a reasonable doubt that your client was guilty. I lost, of course. For the sale of two $5 bags of drugs, which he may or may not have done, my client got fifteen years in prison .

Five Bullets

          Hypotheticals are the life blood of law school. Students read a case and seek out its “holding,” the reasons underlying the court’s decision. The professor then posits modified facts and asks if the reasoning still applies or whether the decision should now be different. Both as a law student and a professor in a law school I played around with hypotheticals, but while sometimes intellectually intriguing, these were bloodless exercises. Grades might have been affected, but since the litigants were made up, money, property, and freedom were not at stake. However, on occasion in my public defender work what could have been a law school hypothetical appeared, and the resolution of the legal game determined whether someone went to prison.

          Hearsay was the issue on one of those occasions. I will spare you an extensive discussion of hearsay, but its definition is one that almost all students memorize. While it is easy to spout those definitional words, the concept is a difficult one. I would throw hypothetical after hypothetical at the student hoping to sharpen their thinking about what was and was not hearsay. This is an important distinction because the rules of evidence say that juries should not hear hearsay, even though there are dozens of exceptions that permit some hearsay to be heard. But the distinction between hearsay and non-hearsay remains important because if the evidence is not hearsay, the hearsay rule allows it. Thus, I used lots of hypotheticals to teach the hearsay concept, but it often seemed beyond the intellectual abilities of many of my students at a third-tier law school.

There came a time that in addition to the classroom teaching, I was doing an appeal for a public defender. I read the trial transcript, and a hearsay issue was at stake, one that, to my surprise and satisfaction, was almost the same as a stock hypothetical I had used in my evidence classes. I wrote a brief explaining that the disputed evidence was not hearsay and that, therefore, the defendant should have been allowed to have the jury hear it, and a retrial should be ordered.

          The prosecutor’s reply brief was written by a young associate of a prestigious law firm doing what I assumed was mandatory pro bono work. Her high-paying day job signaled that she had gone to a much more highly ranked law school then the one in which I taught. Even so, it was clear that she, too, failed to understand hearsay.

          I was confident when the case came for argument before an array of appellate judges. The issue was not one of interpretation or nuance. This was a classic case of non-hearsay; it should have been admitted. Its exclusion in the trial court caused an unfair trial. The conviction had to be reversed.

          After my introductory comments at the lectern, I firmly said, “This was not hearsay. It should have been admitted. The defendant was denied a fair trial.” And then I was taken aback. The presiding justice said, somewhat sheepishly I thought, “Explain to me again why this isn’t hearsay.” And I thought but did not say. “Oh, shit. She doesn’t understand hearsay either.” This, however, allowed me–for my only time in an appellate argument–to haul out some of my trove of law school hypotheticals, which I hoped I was doing in a non-condescending manner, for there is nothing worse for your case than to appear to be condescending to a judge. I don’t know that I was convincing. It may have simply been that the judge’s clerk had an adequate grasp of the hearsay concept and later educated the judge, but the court’s decision—correctly—ruled for my client, and he was released from prison. But I took credit believing that sometimes, law-school hypotheticals can have real-world consequences.

          An aside: I learned something about handling judges early in my career. My client’s son was charged with a rape. His father, on the advice of a lawyer, had offered the woman money in exchange for her dropping the charges. The lawyer, not the sharpest legal mind, had said that it was just like settling a civil case. The lawyer and the father were arrested for attempted bribery of a witness. The lawyer was being represented by a well-known, highly-regarded criminal defense attorney. He and I both had moved to dismiss charges and submitted briefs with several arguments supporting our position. The judge ridiculed our worked and ticked off how our contentions were unpersuasive. However, he then went on to say that we had ignored an argument, which he articulated. I started to interrupt the judge, planning to say, “But I said exactly that in my brief.” Before I could get started, my distinguished co-counsel grabbed my arm to make me stop and whispered to me, “If he thinks that he thought of it, we will win.” I stopped. We won.

          I have been thinking about that case and another after I recently wrote about a law-school hypothetical on this blog when I posted about the Texas abortion law. (See the three posts of “Let’s Expand the Texas Abortion Law: Search Results for “”Texas abortion”” – AJ’s Dad (ajsdad.blog)) There I explained that a person who drove the robber to the bank was only guilty if the driver knew what the robber had planned. This had me thinking about the five-bullets case where I represented a young man charged with taking part in an attempted murder.

(concluded October 4)