Don't Expect A Flood Of Anti-Abortion Lawsuits In Texas Just Yet

A few factors are contributing to the lack of lawsuits under Texas' new anti-abortion law so far.

Texas’ new abortion ban opened the doors to allowing private citizens to enforce the restrictive law, giving them incentives to sue anyone (doctors, drivers for ride-hailing companies, helpful friends) who “aids or abets” a person in getting an abortion.

But it’s unlikely that there will be a flood of lawsuits — at least not yet.

Texas’ new law, known as S.B. 8, is the strictest in the nation. It prohibits people from getting an abortion after six weeks of pregnancy, even though many don’t even know they’re pregnant at that point. There are no exceptions for pregnancies that result from rape or incest.

Private citizens ― even people who don’t live in Texas ― will get $10,000 and compensation of legal fees if they bring a successful suit. They also face no penalty for bringing a frivolous suit.

S.B. 8 is expected to spawn copycat bills around the country. The Supreme Court recently refused to stop it from going into effect, although justices did not rule on the merits of the law.

But on Monday, a Texas state judge issued an injunction against Texas Right to Life, temporarily blocking the anti-abortion group from suing Planned Parenthood while litigation continues to try to permanently block the law. The injunction will be in place until at least April 2022. CNN noted that there are temporary restraining orders in place against other anti-abortion advocates as well.

Aside from this order, however, Planned Parenthood said it is complying with S.B. 8 at this time and not performing abortions when patients are past six weeks of pregnancy ― something that even Texas Right to Life admits is true.

“We’re not going to start filing cases ourselves or encouraging others to file cases until there’s evidence that the law is being violated. And we don’t have that evidence at this point,” said John Seago, legislative director of Texas Right to Life.

Texas Right to Life is taking the lead in Texas’ process of building up a network of lawyers to take potential cases and claimants. The group set up a website to collect online tips of potential S.B. 8 violations, but it was quickly flooded with fake submissions by activists on TikTok and others.

Seago said the group has hundreds of lawyers in its network who can be tapped to take on S.B. 8 cases if needed.

“We’re trying to make sure the right types of cases can be brought if they’re necessary,” he said.

But Texas Right to Life can’t necessarily control who brings a case forward since any private citizen is allowed to do so under the Texas law. And many individuals may be hesitant to do so because of the attention it would bring them, especially if theirs is one of the first cases.

Still, Seago said, there is an effort to manage the process, recognizing that there will be extra scrutiny in the implementation of S.B. 8.

“Honestly, there is a concern that the first few cases, if they’re necessary ... then there is a potential that they’ll get the most attention, and if they’re mishandled or if they end up not having the right evidence, that it could, although not have a legally binding precedent ― could kind of set the tone for future cases and what judges look at,” Seago said.

Last week, the Justice Department filed a lawsuit against Texas, saying the state enacted S.B. 8 “in open defiance of the Constitution.”

According to the pro-choice Guttmacher Institute, almost 10% of women of reproductive age in the United States live in Texas. In other words, after S.B. 8, “for 1 in 10 U.S. women aged 15-49, Roe [v. Wade] is effectively meaningless at the moment.”