Dammit. You're making me read and interpret a law without being paid for doing so.
This is not a criminal law, correct? — Hanover
In all honesty, I'm not sure what the hell it is. It's worded as a criminal law would be, I think. But it reads as though a criminal law was drafted initially, but then altered to make it enforceable by private citizens, but as much of a law as would impose a fine for prohibited conduct as it could otherwise be.
Abortion clinics may continue to operate in Texas, and they will no doubt be sued, but any judgment would be appealable on the basis of the Constitutional violation, meaning no actual judgment could be enforced prior to the Court eventually ruling. — Hanover
According to the law:
"a physician may not knowingly perform or induce an
abortion on a pregnant woman if the physician detected a fetal
heartbeat for the unborn child as required by Section 171.203 or
failed to perform a test to detect a fetal heartbeat."
I find the summary of the law by the House Research Organization of the Texas House of Representatives more readable than the law itself. The summary seems accurate on a quick review of the text (if I'm looking at the right text--I'm not sure what an "Enrolled" law is in Texas. According to the HRO:
"SB 8 would establish the Texas Heartbeat Act, which would prohibit a
physician from performing an abortion on a woman who was pregnant
with an unborn child who had a detectable fetal heartbeat. The bill would
require a physician, before an abortion was performed, to conduct a test to
determine whether a fetal heartbeat was detected."
"Under the bill, a physician could not
knowingly perform or induce an abortion on a pregnant woman if the
physician detected a fetal heartbeat for the unborn child or failed to
perform a test to detect a fetal heartbeat. A physician would not violate
this provision if the physician did not detect a fetal heartbeat while
performing the required test."
However, according to the HRO:
"No enforcement of provisions
relating to the detection of a fetal heartbeat or of certain Penal Code
provisions in response to violations of the bill could be taken or threatened
by the state, a political subdivision, a district or county attorney, or an
executive or administrative officer or employee of the state or a political
subdivision against any person, except as provided in the bill."
But, says the HRO:
"The bill would authorize any person,
other than an officer or employee of a state or local governmental entity in
the state, to bring a civil action against any person who:
performed or induced an abortion in violation of the bill's
provisions;
knowingly engaged in conduct that aided or abetted the
performance or inducement of an abortion, including paying for or
reimbursing the abortion costs through insurance or otherwise,
regardless of whether the person knew or should have known that
the abortion would be performed or induced in violation; or
intended to engage in the conduct described above.
The bill would allow a person to bring a civil action until the sixth
anniversary of the date the cause of action accrued." (I've seen "fourth anniversary date" as well, somewhere).
The text of the law provides that a successful private enforcer of the law would be entitled to:
"(1) Injunctive relief sufficient to prevent the
defendant from violating this subchapter or engaging in acts that
aid or abet violations of this subchapter;
(2) Statutory damages in an amount of not less than
$10,000 for each abortion that the defendant performed or induced
in violation of this subchapter, and for each abortion performed or
induced in violation of this subchapter that the defendant aided or
abetted; and
(3) Costs and attorney ’s fees."
But, according to the HRO: "A court could not award costs or attorney's fees under the Texas Rules of
Civil Procedure or any other rule adopted by the supreme court to a
defendant in a civil action." Also: "Any person, including an entity, attorney, or law
firm, who sought declaratory or injunctive relief to prevent this state from
enforcing certain laws that regulate or restrict abortion would be jointly
and severally liable to pay the costs and attorney's fees of the prevailing
party, as defined in the bill."
In addition:
"SB 8 would prevail over any conflicting law. The state would
have sovereign immunity, a political subdivision would have
governmental immunity, and each officer and employee of the state or a
political subdivision would have official immunity in any action, claim, or
counterclaim or other type of legal action that challenged the validity of
Health and Safety Code ch. 171 or its application."
A complicated bit of legal draftsmanship.
Abortion clinics may continue to operate in Texas, and they will no doubt be sued, but any judgment would be appealable on the basis of the Constitutional violation, meaning no actual judgment could be enforced prior to the Court eventually ruling. — Hanover
Well, where I come from, judgments may be enforced even on appeal unless a court rules otherwise. So it may be that such relief would have to be sought--and who could say what court would stay enforcement of a judgment under a law the enforcement of which the Supremes refused to stay?
You may read the law and come to your own conclusions, but it seems to me to be drafted in such a manner (by prohibiting award of attorney's fees to defendants, making defense lawyers liable for costs and fees, by limiting affirmative defenses which may be raised, putting the burden of proof on the defendant, and other means) that an action to enforce the law will be very difficult in not impossible to defend against.
My primary quarrel with the Supremes is their failure to act.