The new Texas abortion law could be a civil suit model for other states

The Republican lawmakers gathered around the marble table for the historic moment, watching as Texas Gov. Greg Abbott signed the strict abortion bill into law.

Several applauded, one pumped his fist. Abbott had finalized Senate Bill 8 — a piece of Texas legislation that bans abortions after six weeks of pregnancy and in effect blocks women’s constitutional rights to the procedure established under Roe vs. Wade in 1973.

“Millions of children lose their right to life every year because of abortion,” Abbott said staring into a camera in May. “In Texas, we work to save those lives.”

The ripple effects from that moment — and the law’s creative workaround method that involves using the threat of civil lawsuits against seemingly anyone involved in or aware of any step of an abortion — have reached far beyond the borders of the traditionally red state of Texas. The U.S. Supreme Court on Sept. 1 voted not to block the Texas measure, which went into effect that day and prohibits most abortions.

Now, legal scholars fear that the law in Texas will lead to a rush of similar efforts in other states, prompting local legislators to pursue new measures on gun rights, immigration and other divisive political issues, all in an effort to sidestep the federal government.

From the Deep South to the Upper Midwest, legislators in many conservative states have started to explore how similar laws could be put in place in the months ahead. Some ideas that were percolating before the Texas measure are likely to gain momentum.

“What a law like that in Texas is doing is empowering people to use civil litigation to fight cultural and social grievances,” said David Noll, a law professor at Rutgers University.

Critics of Senate Bill 8, including the Biden administration, which is suing the state of Texas to halt the abortion measure, have assailed it as a clear violation of the Constitution. Roe vs. Wade, which allows abortions until about 24 weeks of pregnancy, remains the law of the land.

In its 5-4 majority decision in the Texas case, the Supreme Court said that it was not ruling on the constitutionality of the state law, but that an emergency attempt to stop it by abortion providers had not succeeded in its challenge. Members in the court’s minority in the ruling called the Texas measure unconstitutional and dissented that it could have been blocked pending appeals.

The new Texas legislation allows individuals to sue abortion providers or anyone who “aids and abets” in the process — a broad category that could include, say, someone who drives a woman to an appointment — for up to $10,000.

“This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear,” U.S. Atty. Gen. Merrick Garland, who is leading the effort to halt the law, said. “If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents.”

Florida Gov. Ron DeSantis, a Republican, said this month he would “have a look” at whether a Texas type of abortion law could apply in his state. And South Dakota Gov. Kristi Noem, also a Republican, said she felt emboldened to explore tightening abortion restrictions in her state.

Legislators in Mississippi and Arkansas have expressed intentions to pass similar laws, and in Missouri, state Rep. Mary Elizabeth Coleman has made the topic one of her top legislative efforts.

Coleman was behind a 2019 law that banned abortions after the eighth week of pregnancy, but is currently unenforced amid a federal court challenge by Planned Parenthood. Still, the state is among the most restrictive when it comes to abortions. Only a single clinic in St. Louis offers the procedure.

“We have to do anything we can to eliminate abortion, which is the moral wrong of our generation,” said Coleman, a Republican, who was elected in 2018 to represent a district southwest of St. Louis.

Coleman plans to file the bill in December or January, and she hasn’t decided on how much it will allow in monetary damages.

The implications of such efforts, some of which preceded Texas’ legislation, go beyond the issue of abortion.

This summer Coleman and other lawmakers in Missouri passed legislation that allows individuals to sue police departments that enforce federal gun laws that are not already written in state law. A federal law, for example, bans people convicted of particular domestic violence crimes from having guns. Opponents of the new Missouri law have said it could keep police from taking away firearms from state residents found guilty in domestic violence cases.

The bill, signed by Republican Gov. Mike Parson, says that laws “that infringe on the people’s right to keep and bear arms as guaranteed by the 2nd Amendment … must be invalid in this state.”

In Tennessee, lawmakers passed a bill this year that facilitates employees, students and parents in suing for the “psychological, emotional, and physical harm suffered” if a school lets a transgender individual in a bathroom when there are other people in it. The law requires schools to make a “single-occupancy restroom or changing facility” available for transgender people.

Meanwhile, in Kansas, a new measure involves lawsuits over mask requirements and other public health measures related to COVID-19. The law, implemented this year, permits people to go to court over mandates on face coverings, business operation restrictions and limits on the sizes of public and religious gatherings.

And, last year, Utah lawmakers passed a pornography bill that allows individuals to sue websites that don’t have ample warning explaining how “obscene materials” affect minors. Pornography companies have protested the rule, saying it’s a violation of constitutional free speech rights.

Some conservative activists and politicians behind the Texas law say they are using tactics similar to those used by liberals on issues like immigration.

They have pointed to the “sanctuary city” movement, in which cities, mostly run by Democrats, have declared themselves to be friendlier toward immigrants because their law enforcement officers will not cooperate with federal immigration authorities by turning over individuals without proper legal documents who are in local jails. A key difference, however, is that sanctuary city declarations do not invite civil lawsuits by private parties who are uninvolved in immigration matters.

In addition, conservative activists have argued that they’ve modeled the Texas abortion bill on federal environmental and disability laws.

For decades, citizens have sued over public accommodations that don’t adhere to guidelines that allow access for people who are disabled. Many legal experts say those kinds of suits are not the same, however, because they typically require a person who files it to show how they have been harmed. Under the Texas law, any individual can sue.

New York state Sen. Zellnor Myrie, a Democrat who opposes the Texas measure, said in an interview that there are circumstances in which challenging federal laws make sense.

Myrie was behind a new law in the state that as of this summer allows people to file legal challenges against gun manufacturers for violence from firearms that were illegally smuggled into the state, bypassing broad immunity from suits that is given to those same manufacturers under federal law.

“Texas’ new law is ingenious in its cruelty, depriving women of needed reproductive health care and turning ordinary people into bounty hunters against their neighbors,” Myrie said. “Texas’ law obliterates an entire set of healthcare services and options, whereas in New York, responsible gun companies have nothing to fear from our new law — they don’t need special protection from lawsuits.”

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