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Texas Tries to Upend the Legal System With Its Abortion Law

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Texas abortion law

Efforts in red states to pass increasingly restrictive limits on abortions have ramped up in the past few years as the composition of the Supreme Court has made it more likely that those laws will be upheld. But a new law in Texas that’s set to go into effect on Sept. 1 is especially worrisome.

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant; it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

All of that would be problematic enough, but enlisting private citizens to enforce the restriction makes it very difficult, procedurally, to challenge the bill’s constitutionality in court. A lawsuit filed in federal court in Austin last week tries to get around those roadblocks. We believe that it should succeed. But if it fails, not only would that leave the most restrictive anti-abortion law in the country impervious to constitutional challenge; it would also encourage other states to follow Texas’ lead on abortion, as well as on every other contested question of social policy.

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