rewire news group: “Historically, when Texas has enacted an unconstitutional abortion ban—and believe you me, they have passed plenty over the last decade—the Center for Reproductive Rights, Planned Parenthood Federation of America, and/or the American Civil Liberties Union, who essentially act as the lawyer-gatekeepers between abortion providers and pregnant patients in need of abortion on the one hand, and meddling politicians who want to plant a flag in the uterus of every person in this country on the other hand, would immediately file a lawsuit challenging the law. And, in most cases, a federal judge would immediately block the law, thus preserving access to abortion while the lawsuit makes its way through the courts. Texas has passed pre-viability bans and burdensome restrictions, and patients in Texas have been able to access abortion because lawyers went to court and blocked Texas Republicans from infringing on pregnant Texans’ constitutional rights.
It’s been good for pregnant patients but frustrating for anti-choice politicians who want their regressive laws of dubious constitutionality to go into effect so that clinics will close and access will be cut off while the law’s constitutionality is litigated in court over the course of several years.
So Texas Republicans came up with a new scheme: SB 8 turns over enforcement of the law to private citizens and forbids its enforcement by public officials.
This way, anyone wanting to challenge the law literally can’t. They can’t file a lawsuit against the attorney general or the head of the department of health—the traditional defendants in lawsuits like these—because public officials have no enforcement power. You can’t sue a public official for something they will never do, and which the law says they’re not allowed to do.
That’s not to say that the lawyers at CRR, PPFA, and the ACLU aren’t going to try. Last week, they filed a lawsuit on behalf of dozens of abortion providers, clergy members, nonprofit groups, and mutual aid organizations challenging the law. But since the law makes it impossible to sue anyone, lawyers for the plaintiffs decided to sue everyone: The suit names every state judge and every court clerk as a defendant because they might be called upon to help enforce the law in the future by participating in the civil lawsuits.
I’m going to be frank: This lawsuit is bonkers. But the law it is challenging is bonkers, and you know the old saying: You gotta fight bonkers with bonkers.”