The appeals court, the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, has not yet issued a decision in an appeal pending before it. But “the writing is on the wall,” the providers told the justices. “And although the Fifth Circuit expedited the appeal, it will not hold argument until December at the earliest.”
“Meanwhile, Texans are in crisis,” They wrote.
S.B. 8, the Texas law, was written by the providers. 8 has some unique features. The law, which makes no exceptions for pregnancies resulting from incest or rape, bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.
It is difficult for abortion providers to decide who to sue. Lawsuits seeking to invalidate laws are often filed against the people charged with enforcing them. When the providers filed suit in federal court, they named, among others, every state trial court judge and county court clerk in Texas.
It is possible to sue for a challenge to the law. However, private citizens are allowed to sue doctors, staff members at clinics and counselors as well as people who help pay for the procedure. You can even sue an Uber driver who took a patient to an abortifacient clinic. Plaintiffs who are not residents of Texas and have no connection to the abortion, or show that they suffered any injuries, can claim $10,000 and legal fees if they win. Prevailing defendants don’t have legal fees.
“Faced with the threat of unlimited lawsuits from the general populace and the prospect of ruinous liability if they violate the ban, abortion providers have been forced to comply,” The providers wrote. “As a result, Texans with means must now travel hundreds of miles each way to other states during a pandemic, just to exercise a clearly established federal right. The surge of Texans seeking out-of-state appointments for this time-sensitive medical care is causing backlogs in those states, delaying abortions by weeks for Texans and non-Texans alike.”