by Richard Cameron
Texas G.O.P.’s Privatized Gestapo Law Against Women Could Hit A Wall … The Constitution
So, for the last several days I have been asking some basic questions to anyone who would listen about some serious defects I see in this newest attempt at abortion prohibition in Texas – SB 8.
The questions have to do with provisions that allow virtually anyone that opposes a woman’s decision about her own pregnancy, to file a civil lawsuit against everyone involved in the “supply chain”, if you will.
To begin with, a basic and established premise of tort law proceedings is that the plaintiff must demonstrate to the court that they personally have been injured (physically, emotionally, materially) by the actions of a party they have named as a defendant.
This is the issue of standing. The judge would reasonably ask the plaintiff, “do you know the defendant personally? Are you related to the defendant?”
The law, signed by the Texas Governor enfranchising the public, whether they be residents of the state or not, to function as bounty hunters, is a bizarre construction that contradicts established, defined lanes of the legal system. The people acting in that role are defining themselves, not as bounty hunters, per se, but as “whistleblowers.”
There are lots of problems with this, not the least of which, is that on one hand, whistleblowers as we knew them prior to this conflation, brought corruption committed by elected or public officials (think Lt. Col. Alexander Vindman), to the attention of governing bodies and in other contexts, violations of criminal law in the private sphere, to the attention of law enforcement.
What they don’t do – whistleblowers that is, is report malfeasance or violations of the criminal code in exchange for monetary rewards, nor do they submit the information they have uncovered in a civil proceeding, i.e., a lawsuit as opposed to a criminal prosecution. What we are describing here are “citizen informants” – “a witness who, without expecting payment and with the public good in mind, comes forward and volunteers information to the police or other authorities.”
It’s a person, for example, in attendance at a state fair, who is a witness to the severe beating to unconciousness, of one man, by a group of men, and who discloses what he or she has seen to responding officers as well as the identity of the attackers.
The other common sort of informant is the Police confidential informant. As those of you who are fans of TV crime dramas are aware, these are persons that may be themselves affiliated with organized crime or other criminal activity, whose prime motivation is not helping to solve a crime or advance the cause of justice, but is looking for compensation, either in the form of a cash payment or a reduction in a prison sentence.
Some of this also comes into play when a city or county and even the federal government in some situations, offers a cash reward for information leading to the arrest of an individual suspected or murder, drug trafficking, financial crimes, etc. Legal experts cite one study that found that 92% of search warrants filed in federal courts for drug cases relied on information from confidential informants.
However, even if we are simply discussing “citizen informants”, the altruistic motivation is not always present. According to former police officer and San Bernardino, California criminal defense attorney, Michael Scafiddi:
“Even non-compensated citizen informers may have reasons to lie to police—such as a desire to get revenge on the person they are informing on. And police probably have even less information about the backgrounds of these people than they do about paid informers.”
But all of this is academic. Civil courts, as they have been constructed for centuries, have no provision for the prospect of bounty hunters or whistleblowers and they don’t award compensation for people occupying such roles.
The only circumstance in which anything that resembles what the Texas State Legislature has devised, is the presence in civil proceedings, of witnesses for the person or entity bringing the suit. The question then arises, “can the witness be paid for their testimony?” The answer is it depends on the witness and what their role is.
If it is someone simply attesting to the court under oath about a piece of evidence or something they personally saw or heard that has bearing upon the material claims of the defendant – then no they cannot be paid, other than incidental expenses. Those expenses would be for example; had to miss a day’s work; transportation related expenses; and meals out) – per diems, in other words.
On the opposite side of the ledger, if the witness is an expert witness – everything from an auto mechanic to a licensed psychiatrist, they can be compensated in the form of hourly professional fees for preparation of their testimony and the time they spend in the courtroom.
If you can’t prove to the court that you have standing (despite whatever sort of misbegotten piece of legislation a state might pass), you have no standing and the court dismisses the suit summarily. Game over.
If by some contorted argument, the plaintiff can withstand the first test, there is a second matter that has to be substantiated. What material damages can the plaintiff enumerate and on what basis? SB8 states, “a lawsuit can be brought by “[a]ny person, other than an officer or employee of a state or local governmental entity in this state.”
SB8 establishes a “private right of action” that substitutes traditional state criminal and regulatory enforcement for the law’s grant to private parties through litigation. David Coale, an appellate attorney in Texas, remarked, “It’s wide open. That is a radical expansion of the concept of standing.”
John Seago, legislative director for Texas Right to Life, the anti-abortion advocacy group that lobbied for SB8 and is gearing up to use it to intimidate women’s reproductive health services in the state out of existence, explains the strategy.
“They have standing because the Legislature gives it to them,” said John Seago,. “You don’t have to be personally harmed.”
Coale disputes the validity of universal standing in civil proceedings. “There’s a sort of irreducible minimum that you have to have before you’re in court, just as a matter of how a court is defined,” Coale said. “And this goes way beyond that.”
Seago, plays down the perception that the law will precipitate a substantial number of actual suits being filed, or that the outcome of any that are, is pre-ordained. “None of this is relevant if they comply with the law, and that was the goal,” Seago said. “Some of the rhetoric around this bill acts as if the judiciary is not going to function. … I think we can have more faith in our judiciary than assuming they’re just going to be pawns of the pro-life movement.”
Elisabeth Smith, the Center For Reproductive Rights’ Chief Counsel of state policy and advocacy, in a statement, noted that, “The goal of this law is to saddle doctors and clinics with so many lawsuits that they have no resources left to stay open.”
The Texas Tribune reports that in a letter to lawmakers last month, a coalition of more than 300 Texas attorneys outlined constitutional objections to the provisions of the statute, saying the civil lawsuit construct “weaponizes the judicial system” and warned that it could subject Texans to harassment and abuse through the legal system.
One aspect of SB8 and the political opportunism behind it, is the glaring contradiction to longstanding opposition on the part of the GOP toward expanded avenues of civil litigation.
The Republican party, at the behest of corporate interests, insurance companies and physician lobbying groups, has been the tip of the spear of tort reform for several decades, advocating radically scaling back lawsuits. Jon Michaels, a professor at the UCLA School of Law, sets the background on this in the Texas context:
For decades, groups including the powerful Texans For Lawsuit Reform have sought to reduce “needless lawsuits,” especially against businesses, by funding and helping to elect Texas Republicans. In the mid-1990s, George W. Bush included tort reform in his platform as he ran for Texas governor. In the most recent legislative session, lawmakers made it harder to sue commercial trucking companies and limited claims that can be brought against companies for exposing workers and others to COVID-19.
Now, it seems, when an opportunity presents itself to expand the filing of torts in every judicial district in the state, because of political expediency, they rush to it with open arms.
Apart from the foundational issue of standing, which this law will have to survive – are other features which seem inevitably vulnerable to legal challenges. One in particular is the provision that prevents defendants who prevail in court rulings against the anti-abortion bounty hunters from recovering their legal costs.
SB8 is exceptionally pernicious due to its chilling effect. Many providers of womens’ reproductive medical services, are not financially situated to be able to sustain the costs of responding to a lawsuit based on the legislation.
It remains to be seen whether a provider will continue to practice in the face of certain civil filings by individuals or parties claiming standing as plaintiffs. If they do, then the law can be tested in state and federal courts. If not, the options left to many women who need to discontinue a pregnancy for any number of reasons, will be severely curtailed.
Beyond that, the law will have set in motion, a perverse societal environment where strangers, neighbors, relatives and private investigators are incentivized to surveil women and anyone suspected of assisting them in obtaining an abortion.
This will be very much like the Committees for the Defense of the Revolution in Cuba under Castro and his successors and also resembles the stalking and harassment characterized by religious police in Islamic theocracies such as Saudi Arabia, Iran and once again, Afghanistan.
Are there prospects for overturning SB8? Just this morning, Biden administration Attorney General Merrick Garland held a brief press conference announcing that the Justice Department is taking action against the Texas law. “The act is clearly unconstitutional,” Garland said.
The 30-page complaint against the Lone Star State, filed in federal court in Austin, alleges that the State of Texas has enacted “an unprecedented scheme” to insulate the abortion law from legal challenges by empowering private citizens to “serve as bounty hunters” against those who seek out or assist in obtaining abortions.
The government is petitioning the court to declare the abortion law “invalid, null, and void,” and bar Texas from enforcing it in any way. The Attorney General also remarked that:
“This kind of scheme to nullify the constitution of the United States is one that all Americans, whatever their politics or party, should fear. If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents.”
The particulars of the suit filed by the Attorney General will be hashed over by many legal commentators on the networks today and in the next few days. And there’s little doubt that one of the central matters it will address, is the dubious concept of unqualified standing and the notion that anyone that files a suit can request a judge to award $10,000.00 or more on the basis of essentially no demonstrable damages or personal injury other than their offended sensibilities about a woman’s right to choose.
In fact, today’s lawsuit demonstrates that the law uses the court system to enforce the authority of the state, using third parties as proxies or “agents of the state.”
A couple of nights ago, Rachel Maddow, recapped a case that dealt with virtually the same legal dynamics vis a vis the authority, or lack thereof of a state, in delegating its own Constitutional enforcement prerogatives to a private party or parties.
She explains the history of that case, who the attorney for the plaintiff was that took it all the way to the Supreme Court and how it may wind up being profoundly relevant to the issue at hand here in 2021:
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