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Controversial Texas Law That Restricts Abortions Takes Effect In September

LEILA FADEL, HOST:

The Supreme Court will hear a case about a Mississippi law banning nearly all abortions after 15 weeks when the court's next term begins. But a new Texas law, Senate Bill 8, set to go into effect in September, is much more restrictive. It will ban abortions as early as six weeks into pregnancy. And it allows private citizens to sue the abortion provider and anyone who helps a person get an abortion. Stephen Vladeck, a law professor at the University of Texas in Austin, co-wrote an opinion piece about that law. He says, if it's upheld by the Supreme Court, it means the end of Roe v. Wade.

STEPHEN VLADECK: It's just about the most restrictive limit on abortions in the country. It basically prohibits most abortions in the entire state of Texas from as early as the woman's sixth week of pregnancy - basically, before most women even know they're pregnant. That would be problematic enough in the abstract. But it also makes that prohibition devilishly hard to challenge in court in a really weird way, by taking the state out of the enforcement business. It's not the state of Texas' job to enforce this law. Rather, it's the job of private citizens, who can sue not the pregnant woman, but the abortion provider if they believe that they're about to offer or provide an abortion inconsistent with this law. That's really unusual. And in this case, it's actually a pretty cynical attempt to make it harder to challenge the underlying ban.

FADEL: So then does this law pit citizen against citizen? I mean, you can sue an ex-partner, a person who gives a ride to a friend to an abortion clinic.

VLADECK: You can sue a person who gives a ride to a friend to an abortion clinic. You can sue someone who gives money, say, to Planned Parenthood of Texas. Now, the tricky part and what the law's drafters well know is that it's actually really hard to convince a court that a random person has what we call standing to sue an abortion provider, someone who assists an abortion provider. But that's the whole trap of this law.

FADEL: OK.

VLADECK: If it were obvious that that person could sue, then the provider or the friend or the donor could just defend their conduct on the ground that SB 8 is unconstitutional. The fact that it's not clear that anyone will be able to actually enforce this law is part of what makes it a catch 22 for anyone who wants to obtain or provide a lawful abortion in Texas.

FADEL: So then how can abortion providers challenge the law?

VLADECK: So there's at least one challenge already pending. A number of providers have brought a very unusual lawsuit where they've named as the defendants just about all of the judges in the state of Texas on the theory that at the very least, even if the governor and the attorney general are not involved in enforcing this constitutionally problematic restriction, the courts would have to be. We haven't gotten that far in that lawsuit just yet.

FADEL: Now, you wrote in your op-ed that if this challenge fails on procedural grounds, it could open the door for, quote, "turning citizens against one another on whatever contentious issues their state legislature chose to insulate from ordinary constitutional review." Could you explain?

VLADECK: Yeah. I mean, this is the concern. You know, in Texas, it's about abortion. But what if California turns around and passes gun restrictions that have a similar procedural trap, where the state's not the one enforcing it, it's actually private citizens who believe that someone's keeping a gun in their home in violation of the relevant state laws. This is why, you know, historically, we've relied upon so-called private attorneys general allowing private citizens to bring suit only to supplement state and federal law enforcement, not to supplant it.

The model of private attorneys general historically has not been in this context, has not been, you know, encouraging private citizens to spy on each other. Rather, it's been about, you know, using the citizenry to report on fraud or waste or pollution. A model in which we are now empowering private citizens in lieu of the state to enforce restrictions on private conduct - and very personal conduct - I think is a very dangerous road to go down and really risks fundamentally changing our legal system to a point where neighbors really are encouraged to spy on each other, where we feel uncomfortable, you know, being public about what we're doing in our day-to-day lives. You know, that's a pretty big price to pay even for those who are sympathetic to what Texas is doing on the merits.

FADEL: What implications does all of this have for Roe v. Wade?

VLADECK: The implications for Roe are pretty dire. You know, I think there are a lot of folks who are all but expecting the Supreme Court to overrule Roe in the Mississippi case next term. I think that's unlikely. I think what's much more likely is the Supreme Court is going to continue to chip away at Roe v. Wade. And there's a way to do that in the Mississippi case that would still leave the right of pregnant women to obtain an abortion prior to the 15th week of pregnancy pretty well intact. That's not true in Texas. There's no universe in which SB 8 survives and Roe does as well.

FADEL: Stephen Vladeck is a law professor at the University of Texas in Austin. Stephen, thank you for joining us.

VLADECK: Thank you. Transcript provided by NPR, Copyright NPR.

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