ABSTRACT
On May 19, 2021, Texas enacted SB 8 – also known as the Texas Heartbeat Act – which prohibits almost any abortion of a fetus once a heartbeat can be detected, effectively banning abortions after only six weeks of pregnancy. Just as controversially, SB 8 also specifies that it is enforceable exclusively through private civil actions, and it allows any private person to sue anyone who ‘performs’, ‘induces’, or ‘knowingly … aids or abets the performance or inducement of an abortion’, seeking injunctive relief and statutory damages of $10,000 per violation. The passage of SB 8 immediately led to calls for, and predictions of, copycat laws. Within weeks, legislators in several states had indicated their intent to pass identical bills, while others warned that the law’s enforcement mechanism could be applied to a range of lawful activities, from gun possession to facilitation of same-sex marriage. Indeed, states have already passed laws enabling individuals to file suit against schools that teach ‘critical race theory’ or refuse to exclude transgender students from bathrooms or athletics. Numerous legal scholars, judges, and commentators have decried this ‘unprecedented’ enforcement mechanism, especially the creation of a private cause of action for uninjured individuals with no connection to the person seeking an abortion. Critics have likewise labeled as unprecedented the fact that SB 8 enables plaintiffs to file suit anywhere in Texas, denies defendants certain well-recognized affirmative defenses, compels losing defendants to pay plaintiffs’ fees and costs, and provides a ‘bounty for successful plaintiffs …
Stern, Scott W, Moral Nuisance Abatement Statutes (November 14, 2022), Northwestern University Law Review, volume 117, no 3, 2022.
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