Class Action Lawsuit Aims to Halt New Texas Anti-Abortion Law, Declare Bill Unconstitutional

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Abortion providers and rights activists have filed a proposed class action aiming to halt the passage of a new Texas law they say “flagrantly violates the constitutional rights of Texans seeking abortion” and serves solely an anti-abortion agenda. 

The 49-page lawsuit argues Texas Senate Bill 8, or S.B. 8, which bans the procedure after six weeks and provides for $10,000 in damages to anyone who successfully brings a suit to enforce the law against abortion providers or recipients, must be declared unconstitutional, in part because of how it might allow any other state to “similarly subvert the federal constitutional rights of a group disfavored in that state.” 

“The Texas Legislature’s well-documented hostility to the rights of pregnant people has gone to a new extreme,” the complaint, filed Tuesday in Texas federal court, begins, charging that S.B. 8, in effect, “places a bounty on people who provide or aid abortions, inviting random strangers to sue them.” 

According to the lawsuit, S.B. 8 is no different than other pre-viability abortion bans other states have adopted in defiance of Roe v. Wade and disregards nearly 50 years of “unbroken precedent” that holds that a state may not prohibit abortion before viability. Until that time, the plaintiffs stress, it is up to the patient, and not the state, to decide whether a pregnancy should be continued, a point courts have uniformly upheld. 

Included in S.B. 8, according to the lawsuit, is a barring of government defendants, such as the attorney general, local prosecutors and the health department, from directly enforcing the law’s terms. Instead, S.B. 8 “deputizes” private citizens to enforce the statute, allowing anyone other than government officials to file a civil lawsuit against anyone who violates the act, regardless of whether they’re connected to the abortion, the case says. 

“The Texas Legislature was well aware that S.B. 8 would stand no chance of taking effect if a court reviewed it in advance of the law’s September 1 effective date,” the suit says. “So the Legislature attempted to insulate its patently unconstitutional law from judicial review.”

The plaintiffs assert that the purpose of S.B. 8’s enforcement scheme was to block abortion providers and those who assist abortions from suing government officials for an injunction to block the law from taking effect. Moreover, the law “commandeers” Texas courts to help enforce the abortion ban, further upending generations of legal precedent and federal regulations designed to prevent abuse of the legal process. From the complaint:

“At every turn, S.B. 8 purports to replace normal civil-litigation rules and clearly established federal constitutional rules with distorted versions designed to maximize the abusive and harassing nature of the lawsuits and make them impossible to fairly defend against. For example, S.B. 8 provides that persons sued under the Act could be forced into any of Texas’s 254 counties to defend themselves, so long as at least one vigilante there is willing to bring suit, and it prohibits transfer of the cases to any other venue without the parties’ joint agreement. S.B. 8 also states that a person sued under the Act may not point to the fact that the claimant already lost an S.B. 8 lawsuit against someone else on equally applicable grounds or that a court order permitted an abortion provider’s conduct at the time when it occurred, if that court order was later overruled.” 

If permitted to take effect, S.B. 8 will create “absolute chaos” in Texas and irreparably damage Texans in need of abortion services, as well as burden in particular Black, Latinx and indigenous patients who, as a result of systemic racism, already face significant barriers to obtaining healthcare, the lawsuit says. 

The bottom line at issue, the lawsuit relays, is whether Texas can adopt a law that sets about to “do precisely that which the [Constitution] forbids.” The answer to that question is no, the plaintiffs contend, indicating that S.B. 8 could well open the door to myriad liability problems for those in all walks of life based merely on viewpoint disagreements. More from the suit: 

“[S]tates and localities across the country would have free rein to target federal rights they disfavor. Today it is abortion providers and those who assist them; tomorrow it might be gun buyers who face liability for every purchase. Churches could be hauled into far-flung courts to defend their religious practices because someone somewhere disagrees with them. Same-sex couples could be sued by neighbors for obtaining a marriage license. And Black families could face lawsuits for enrolling their children in public schools. It is not hard to imagine how states and municipalities bent on defying federal law and the federal judiciary could override constitutional rights if S.B. 8 is permitted to take effect.” 

The full list of plaintiffs and defendants in the case can be found in the PDF version of the lawsuit below. 

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