S.B. 8 Relies on litigation tricks that conservatives have long condemned as a threat to the rule of law.
The Texas “heartbeat” bill that the Supreme Court declined to block last week is almost as restrictive as the Texas law that the court overturned half a century ago in Roe v. Wade. The fact that this new bill nevertheless took effect is a remarkable victory for the anti-abortion cause, made possible by an innovative enforcement mechanism that relies on private litigation. That victory, however, required embracing tactics that conservatives have long condemned. Texas Senate Bill 8 invites lawsuits by financially incentivized plaintiffs who need not claim any personal injury, rigs the rules in their favor, establishes vague liability theories that threaten freedom of speech, and offers a model for attacking other rights that the Supreme Court has said are protected by the Constitution. The Texas law at issue in Roe prohibited abortion except when it was necessary to save the mother’s life. S.B.8 bans abortion after fetal cardiac activity can be detected, which happens around six weeks into a pregnancy, long before “viability” and before many women even realize they are pregnant. The organizations that challenged the law estimated that it would affect “at least 85% of Texas abortion patients.” The only exception is for a “medical emergency,” meaning the ban applies to cases involving rape, incest or predictably lethal fetal defects.
