Poor Texas. I’m not referring to the women there, who will no longer be able to find abortion providers, even if they are victims of rape or incest. This obviously shocks me, but a lot of ink will be spilled on that issue. Perhaps more shocking is that Texas lawmakers got it into their pretty little heads that it would be a good idea to put private citizens in charge of preventing abortions, and punishing people for administering them. You don’t need a law degree to see how this is going to go; it’s a peak “hold my beer” moment from a state legislature if there ever was one.
In case you haven’t heard, Texas passed a new civil law that allows private citizens to sue other private citizens if they perform, or even assist in an abortion. The woman herself can’t be sued, but her doctor, her Uber driver, a friend who drove her to a clinic can. If the plaintiff wins, he is entitled to legal fees. If the defendant wins, she isn’t. Because this is a civil law, and not a criminal law, the state has removed itself completely from the process of enforcement. Is this giving you the heebie jeebies yet? Because it should.
First, there is the very real potential for the utter destruction of the medical privacy of all the citizens of Texas. Assuming that the concept of burden of proof will still mean something in these cases, how will the plaintiff meet this burden? Likely by subpoenaing medical records of the woman who purportedly had the abortion. But because this woman cannot be a defendant according to the law, this means Texas will begin to set a precedent that medical records of a non-party to a lawsuit are fair game. Or they could simply compel testimony of the woman, who again, is only a witness to the suit, not a party.
Pause and think about that for a moment. Child custody disputes are civil in nature. Want to subpoena the medical records of your ex-wife’s new boyfriend, to prove that he sought therapy for addiction or other struggles with mental health? Why not, after cases go forward pursuant to what is mildly known as Senate Bill 8? Texas, meet the slippery slope.
But the real myopia is this: somehow it never occurred to Texas that an endorsement of private citizen vigilantism in the courts could someday be used by…