Read what follows with the understanding that I am not an attorney, just an interested observer.
A great deal of sneaky cleverness went into the design of Texas’ new law limiting abortions to the first six weeks of pregnancy. The law is enforceable only by private citizens filing law suits against those who perform or assist another to have an abortion post 6 weeks, no criminal prosecution appears possible. This is unique in my experience.
As the Supreme Court noted in its statement refusing to provide injunctive relief, “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves" where the presumption is that those individuals are specific government officials. Such government employee action is specifically prohibited by the TX law.
My understanding is that unlike most suits, private persons who sue to enforce this law and do not win their suits, cannot be forced to pay the successful defendant’s legal expenses. This feature encourages nuisance suits.
Texas has passed a law that empowers what amounts to a posse to do the enforcing, minus the deputizing and sheriff oversight. I envision bounty hunters staking out clinics and medical offices, looking to make an indecent living suing, or threatening to sue, doctors, feminists and liberal churches.
I also see much opportunity for abuse of this law, suits aimed at persons against whom one holds some grudge, who may have no abortion involvement whatsoever. Even if the plaintiff loses, the defendant is out legal fees. My understanding is that in civil suits the burden of proof is lower than that in criminal trials, and this seems to have characteristics of both.
The approach also feels like Revolutionary War era letters of marque which authorized legal piracy by private ships so long as it was directed at an enemy country's ships. Privateers weren't always discriminating in their captures, and I'm uncertain TX litigants will be.
