CORPUS CHRISTI, Texas — Texas Senate Bill 8, which is currently being challenged in the U.S. Supreme Court, allows for citizens to sue abortion providers and patients for at least $10,000 in damages.
The language in the law, which was enacted in September, disallows Texas' executive branch from enforcing it, instead allowing for lawsuits in civil court.
READ MORE: SB 8 isn't Texas' first 'fetal heartbeat bill'
But as justices heard arguments Monday afternoon, the questions raised were less about abortion and more about how the law would be enforced.
This could "have a real chilling effect when it comes to the protection of your constitutional rights as an individual, as guaranteed under the constitution and federal law," said KRIS 6 News Political Analyst David Smith.
Typically criminal courts prosecute crimes, while civil courts handle grievances between two parties. This law makes abortion after six weeks' gestation illegal, but instead of being prosecuted, the punishment phase is carried out in civil court.
"There's a loophole that's been exploited here, or used here," Supreme Court Justice Brett Kavanaugh said, according to The Associated Press.
Filing civil lawsuits gets around a 1908 Supreme Court case ruling, Ex Parte Young, in which state officials can be sued in federal court to stop the enforcement of unconstitutional laws. The loophole Kavanaugh is referencing states that the federal court can't "restrain the state court from acting in any case brought before it either of a civil or criminal nature."
“If this civil lawsuit mechanism is allowed to stand, then the state can strip away any right that we hold sacred, and that have been established by the Constitution of the Supreme Court, including voting rights, free speech, and Second Amendment rights, and that is not a healthy state of our legal system,” said Carolina Duble, political director of AvowTexas, a pro-choice group.
Smith said it could lead the way for civil cases in which, for example, someone who doesn't agree with another person having a gun can challenge the ownership in court and possibly win.
“You could be technically deputizing, or providing police or governmental protection, to those individuals every time they file a suit,” he said.
Duble fears it could destabilize any and all rights guaranteed by the Constitution.
“If a state can simply deputize private individuals to enforce the law for them, then no constitutional right is safe, and no decision from the Supreme Court is safe," she said. "Our constitution cannot be this fragile. What’s at stake here is not only abortion rights, but also our entire constitution and legal system.”
Smith agreed that if the Supreme Court upholds law, it could set an unprecedented standard.
“You could be technically deputizing, or providing police or governmental protection, to those individuals every time they file a suit,” he said.
Smith said it also raises the possibility of an unprecendented chain of litigation that can affect multiple people.
“Multiple individuals can sue at the same time, or can sue in succession, against the facility or the doctor, or even the Uber or Lyft driver, it goes all the way down the domino effect," he said. "There can be multiple suits regarding the same instance or incident."
Smith said SB8 also raises several questions, such as whether only the first person to file suit is eligible for the reward, or if everyone who sues that same patient or provider is.
"That’s really not clear under the law,” he said.
Even if only one plaintiff wins the decision, Smith also said the mechanism could end up costing those sued far more than just the $10,000 minimum award if they lose.
“Even if the claim is found to be non-enforceable, the defendant will have to pay all the cost for their lawyers, court fees, and time off work and lost wages," he said. "So, even if the plaintiff is not successful, there are still financial ramifications beyond the settlement, or $10,000 minimum that can be awarded.”
Smith said he does not expect the Supreme Court to make a ruling on SB-8 any time soon, and believes it might not be resolved until the spring of 2022.
