It’s hard to convey just how revolting the Texas abortion ban the Supreme Court has allowed to go into effect is:
Usually, a lawsuit seeking to block a law because it is unconstitutional would name state officials as defendants. However, the Texas law, which makes no exceptions for pregnancies resulting from incest or rape, bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.
The patient may not be sued, but doctors, staff members at clinics, counselors, people who help pay for the procedure, and even an Uber driver taking a patient to an abortion clinic are all potential defendants. Plaintiffs, who do not need to live in Texas, have any connection to the abortion or show any injury from it, are entitled to $10,000 and their legal fees recovered if they win. Prevailing defendants are not entitled to legal fees.
That novel formulation has sent clinics scrambling.
Dr. Jessica Rubino, a doctor at Austin Women’s Health Center, a small, independent clinic in the state capital, said that at first, she wanted to defy what appeared to be an unconstitutional law. But she said she concluded that doing so would put her staff at risk.
“If this was a criminal ban, we’d know what this is and what we can and cannot do,” Dr. Rubino said. “But this ban has civil implications. It requires a lawyer to go to court. It requires lawyers’ fees. And then $10,000 if we don’t win. What happens if everybody is sued, not just me?”
For people wondering how this can possibly be consistent with current federal standing doctrine, well, it isn’t, but since enforcement is limited to Texas courts this is also largely a moot point:
The immediate question for the justices is not whether the Texas law is constitutional, but whether it may be challenged in federal court. The law’s defenders say that, given the way the law is structured, only Texas courts can rule on the matter and only in the context of suits against abortion providers for violating the law.
The statute is perfectly designed to allow Alito the ability to uphold a near-total abortion ban while claiming Roe is undisturbed, and the only costs are the immolation of the dignity and autonomy of Texas woman and turning the state into a warren of creepy misogynist narcs.