As of September 1, the Texas abortion law is in effect. According to an article in the Sept. 3rd AJC, a private citizen with no connection to a patient or to a clinic can now file a civil suit against anyone who performs an abortion prohibited by the law or“aids and abets” such an abortion. The bounty hunter can collect legal fees and a $10,000 “reward” from anyone deemed an accomplice, witting or not.
Seemingly, the woman involved is legally “immune” from the laws effects, which in reality, will prove to be a hellish nightmare for her once the civil suits begin to be filed, and “evidence” of the alleged abortion are introduced in a public court.
Since cruelty is the ultimate purpose, at some point, the woman will be subpoenaed and deposed and the bounty hunter will almost certainly release her identity on the dark web. Because she is legally “immunized,” she will have no 4th amendment protections and can be forced to testify under oath against her will.
While abortions before 6 weeks are still legal in Texas, many women don’t realize they are pregnant that early. Some abortion providers estimate that 85% of the patients they see are more than six weeks pregnant and thus would not be eligible to receive care under the state law, according to the NY Times.
While Texas legislators believe their deviously evil and unconstitutional law will somehow reduce the number of pregnant Texas women who seek an abortion, at some point even the most strident Right to Lifers will be confronted by the reality of women’s reproductive issues and choices.
Many people have pointed out that American does not have an abortion problem, the problem is unwanted pregnancies Abortion is just the symptom, and banning abortions solves nothing.
One response that opponents of the law can use to frustrate implementation of the law is scientific. Specifically, the precise and accurate definition of the words “fetal heartbeat,” a term which is integral to implementing the provisions of the law and which is mentioned several times in the text.
Medically, legally and scientifically speaking, at six weeks the womb does not contain a fetus but an embryo. The embryo is basically a lengthy mass of cells, which may or may not proceed to term, depending on the health of the mother and other factors.
While this might seem to be a semantic quibble, words still have meaning, especially in science and medicine, and in this instance, legally.
According to Webster’s 7th New Collegiate Dictionary, (c.1969) a fetus is “an unborn … vertebrate , esp. after attaining the basic structural plan of its kind; a developing human from usually three months after conception to birth.”
In order to detect a true “fetal heartbeat,” the fetus must develop fully functioning heart valves. Fully functioning heart valves do not develop until several months into the pregnancy.
Since, at six weeks, a “fetal heartbeat” does not exist and thus cannot be detected, the Texas law is fatally flawed. The law as written is essentially legal and medical nonsense, in the true meaning of that word. As are all other “Heartbeat Laws” that have been proposed in numerous states, which to date have been stayed by the courts.
In summary, medically speaking, no fetus exists at six weeks, only an embryo. No fetal heart beat can be detected at six weeks since there is no fetus and thus no fetal heart.
Legally speaking, abortions are legal, and constitutionally protected up to the point where the fetus is “viable,” or able to live outside of the womb, even in an emergency basis. Usually 24 weeks.
There are numerous flaws in the law as written which make it unenforceable and unconstitutional.
The Texas law violates numerous Federal statutes and any bounty hunter who attempts to “enforce” the law will violate several Federal statutes and be liable to prosecution.
First, the law “prohibits a physician from performing an abortion once a fetal heartbeat is detected, something that generally occurs around six weeks after conception”
As discussed above, there is no fetal heartbeat at or about six weeks, as there is no fetus before about three months. Words still have meaning, at least in statutory law. At six weeks there is an embryo, not a fetus.
The question arises, did the conservative Texas Republicans deliberately mislabel the law to create the false image of a fetus at six weeks in the public mind instead of an embryo, or were they just ignorant of the medical science. Probably both.
Moreover, how will the bounty hunter know that the non-existent “fetal heartbeat” has been detected? Psychic bounty hunters, anyone? More on that below.
Another patently absurd provision in the Texas law is that “the law bars any individual from aiding and abetting an abortion after six weeks, which includes helping pay for it or merely trying to help a woman obtain one.”
Fortunately,there has been a groundswell of support for Uber and Lyft drivers who might inadvertently or unwittingly ferry a woman to a clinic. A simple solution is for the passenger to ask to be dropped off half a block from the clinic at a hair saloon or just a saloon.
The only remedy for Texas conservatives is to amend the law to mandate that Uber customers seeking to obtain an abortion must state their destination and intentions truthfully under penalty of law. This will require the state to appoint Uber drivers as “officers of the court” so that they can legally obtain sworn, signed statements from their passengers.
While the law declares the woman involved to be “immune,” once a civil suit is filed, she will be targeted by the courts, by anti-abortion fanatics, and conservative media.
A civil suit only requires “a preponderance of evidence” instead of “evidence beyond a reasonable doubt.” And while some accounts say that the law allows a suit if the bounty hunter merely “suspects” an illegal abortion has been performed, still, evidence is going to have to be presented by the prosecution. That evidence will certainly be the medical records of the woman involved.
Under the HIPAA law and regulations, every citizen’s medical records are private. But in order to win the civil suit, the woman granted legal “immunity” could be forced to testify against her doctor, the clinic employees, her Uber driver, her mother who loaned her $500 for a “down payment on a used car,” and her best friend who counseled her to do “whatever you think is best.”
And while she is identified in court as “Jane Doe,” the bounty hunter will certainly know her true identity and be happy to share it with his radical and possibly violent fellow vigilantes and bounty hunters.
No physicians in Texas will be safe from bounty hunters who “suspect” that a doctor “intends” to perform an abortion, on somebody or other. That will be $10,000 please, and thank you.
There is no provision in the law for an abortion if a pregnancy is a result of rape or incest. Those abortions are prohibited after six weeks. Texas Governor Abbott minimizes the inhumanity of that provision by promising to drive the rapists off the streets.
The problem with that approach is that most rapes do not occur “on the streets” * but in rooms in houses. (*racist code words alert)
The rooms might be in places such as fraternity houses, college dorms, houses on private islands and uptown, upscale mansions owned by the Epstein’s and Cosby’s of the world, not to mention the old fashioned Hollywood casting couch and an upstairs bedroom in a house where a kid whose parents are out of town for the weekend is hosting a party and some future judge drinks too many beers and loses control of himself.
In an unconstitutional and most likely fruitless attempt to evade federal court review, Texas allows private citizens to “enforce” the law by filing a civil lawsuit. The law states that “any person,” other than a government official, may file a lawsuit against anyone who performs or “intends!” to perform a prohibited abortion, or who “aids or abets one.” The $10,000 in “statutory damages” for each abortion is payable by the abortion provider and/or anybody who aided or abetted.
The concept of fining a citizen who “intends” to violate a law would be problematical inmost societies. One must assume that the Texas government intends to greatly expand the Texas Department of Thought Police (TDTP) to enforce that particular provision.
According to the NY Times, Sept. 3, 2021, “the Texas law bars state officials from actually enforcing it, a maneuver intended to make it difficult to challenge in court.”
“Usually a lawsuit aiming to block such a law as unconstitutional names state officials as defendants. Instead, the Texas law deputizes private citizens to sue anyone who performs an abortion or aids and abets one.”
This of course even though the bounty hunter has no “standing” and has not suffered any damages.
The Texas Republicans believe that this tricksy maneuver of banning state officials from enforcing the law will prohibit federal judicial review.
The problem with that scheme is that a state law that is unconstitutional on its face does not have to be enforced to be struck down by a federal court.
Despite the delusions of the Republican officials, the usual suspects in this case, the governor and attorney general, should be sued immediately just because the law exists. The Abbott administration and legislature drafted the law and Governor Abbott signed it. The law is in effect and has already had damaging consequences to legal and constitutional medical establishments.
Moreover, the Texas law will prove to be unenforceable as soon as the first suit is filed instate court, not in spite of but because the law explicitly bans state officials from “enforcing” it.
In normal circumstances, district attorneys serving under the attorney general would prosecute any violations of state law. But the law prohibits any “state officials” from taking any legal action. Thus, the deputizing of the bounty hunters.
When the bounty hunters attempt to file suit in a Texas state court, under the provisions of the law, the court should immediately reject the suit.
Why?
Every person who is employed in a Texas state court is a state official. From the judge on the bench, to the clerk of the court, to the court recorder, to the security guard, to the bailiff, all are employees of the state of Texas. These government officials are hired under Texas state laws and regulations, and serve at the pleasure of their state supervisors and/or voters.
The salaries of these Texas state officials are paid by the state courtesy of the taxpayers, they are members of the Texas state health care plan and the Texas state retirement plan. They are Texas “state officials.”
As state officials, they are barred under the Texas anti-abortion law from taking any action that could be considered as “enforcing” any of the law’s provisions.
In summary, under the provisions of the anti-abortion law, no state court in Texas can accept any civil suit or take any action to “enforce” the anti-abortion law. Under the law, No state court judge can accept one of these suits or render any judgement.
The only court in which the bounty hunters can file their civil suits is Judge Judy’s.