COLUMN-Crafty lawyering on Texas abortion bill withstood SCOTUS challenge: Greene

"Lots of lawyers and law professors helped us out,” including Mitchell, whom he describes as a longtime friend and a “very sharp guy.” To John Seago, legislative director of anti-abortion advocacy group Texas Right to Life, the novelty of SB 8 “was that it expands who has standing and takes out the other (criminal) penalties and prohibits state action.” Under the statute, Texas officials have no authority to enforce the new law, which bars abortion after the sixth week of pregnancy.


Reuters | Updated: 05-09-2021 23:21 IST | Created: 05-09-2021 23:21 IST
COLUMN-Crafty lawyering on Texas abortion bill withstood SCOTUS challenge: Greene

Ever since the U.S. Supreme Court decided Roe v. Wade in 1973, abortion opponents have been trying to scale back or undo it. Texas state senator Bryan Hughes, a former personal injury lawyer and author of the “Heartbeat Act,” led a team in succeeding, at least for now, where so many others have failed. As a social policy, the law, which imposes a near-total ban on abortions in Texas but leaves enforcement up to individual citizens, is deeply controversial. House speaker Nancy Pelosi on Thursday said it “delivers catastrophe to women in Texas.”

Still, some supporters stress that Hughes and the co-architects of the law, which included former Texas Solicitor General Jonathan Mitchell, deserve credit for what amounts to creative lawyering in drafting the measure, known as SB 8. These lawyers figured out how to apply qui tam statutes, which allow private citizens to pursue a lawsuit on behalf of the government, to receive an award in the abortion law context. Hughes, 52, in an interview said the new law “is a very elegant use of the judicial system.”

The impetus for creating the unique state-wide legislation came after district attorneys around the country, including some in Texas, publicly stated they would not enforce laws that criminalized early abortions, said Hughes, a Republican from Mineola, Texas. His conclusion? “We had to find another way.”

As a lawyer and legislator, he was familiar with qui tam statutes such as the Texas Medicaid Fraud Prevention Act, which allows private citizens to bring a fraud case and collect a bounty. “The concept was there,” Hughes said.

SB 8’s enforcement mechanism also was modeled after an anti-abortion ordinance enacted by the town of Waskom, Texas, in 2019, Hughes said. The ordinance also delegates enforcement to private citizens bringing lawsuits. Mitchell, a former law clerk to the late U.S. Supreme Court Justice Antonin Scalia, provided legal advice to anti-abortion advocates in drafting the ordinance, which was copied by about 30 other cities across the state.

He declined to comment. “We continued to refine it,” Hughes said of the Waskom law. "Lots of lawyers and law professors helped us out,” including Mitchell, whom he describes as a longtime friend and a “very sharp guy.”

To John Seago, legislative director of anti-abortion advocacy group Texas Right to Life, the novelty of SB 8 “was that it expands who has standing and takes out the other (criminal) penalties and prohibits state action.” Under the statute, Texas officials have no authority to enforce the new law, which bars abortion after the sixth week of pregnancy. Private citizens alone are empowered to sue women and anyone who assists them for violating the ban.

That private citizen component of the law was key in thwarting the abortion-provider plaintiffs, on procedural grounds, from winning an injunction from the U.S. Supreme Court. The defendants whom the abortion providers had named in the injunction action included a state court judge and a private citizen who allegedly threatened to sue women for seeking abortions. But as the high court majority noted https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf, it's not clear that any of them "can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention." The private citizen, Mark Lee Dickson, said in an affidavit that he has no present intention to try to enforce the law, and no cases are before the judge.

So who could the court seek to stop? According to both Hughes and Seago, no one has attempted to sue anyone for performing or assisting in a post-heartbeat abortion since the law went into effect on Sept. 1. Until someone does, SB 8 seems likely to stay on the books, shielded from judicial review.

A Texas judge on Friday temporarily barred https://www.reuters.com/world/us/planned-parenthood-wins-restraining-order-against-texas-anti-abortion-group-2021-09-04 Texas Right to Life from suing Planned Parenthood to enforce the new law. Still, SB 8 won’t get a free pass forever. The five-justice majority wrote that their decision “in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”

It just might take awhile. In crafting the legislation, Hughes, who was elected to the state senate in 2016 and served in the Texas House of Representatives for 14 years prior, said he drew on his legal background.

“Usually in politics, being a lawyer is a negative, but it does come in handy sometimes," he said. From 2003 to 2008, Hughes was a litigator at The Lanier Law Firm, which has scored billions of dollars in verdicts for plaintiffs in cases involving hip implants, diabetes medication and talcum powder.

Founder Mark Lanier in an email described Hughes as “a gifted lawyer strongly motivated by what he thinks is right.” Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

(This story has not been edited by Devdiscourse staff and is auto-generated from a syndicated feed.)

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