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University Of Texas Law Professor Breaks Down The State's Unusual Abortion Ban


The new Texas law that, in effect, bans abortion after about six weeks of pregnancy is an unusual statute. Typically, federal judges have blocked bans on abortion prior to fetal viability, citing Roe v. Wade and other legal precedents. Those bans usually reach federal judges because officials charged with carrying out enforcement are sued. But the Texas state legislature put private citizens in charge of enforcement and created incentives for people to sue abortion providers. It's an unprecedented mechanism. In her dissent last week when the Supreme Court refused to block the law, Justice Sonia Sotomayor said it turns citizens into, quote, "bounty hunters, offering them cash prizes for civilly prosecuting their neighbors' medical procedures." Elizabeth Sepper joins us now to talk about all this. She's a law professor at the University of Texas. Welcome to the program.

ELIZABETH SEPPER: Thank you for having me.

GARCIA-NAVARRO: First, can anyone bring a suit, and who can they sue?

SEPPER: Anyone, anywhere, except for state employees, can sue anyone who provides or aids and abets an abortion after six weeks or intends to do so. So this is a really wide universe from abortion providers to abortion funders to friends, family, clergy people, family physicians and beyond.

GARCIA-NAVARRO: And this change about who enforces the law - I mean, that's very important, right?

SEPPER: Yes. Texas enacted a six-week ban. We've seen those from other states, but they've been enjoined because they clearly fly in the face of Supreme Court precedent. What's unique here is that instead of the state enforcing the law, anyone can enforce the law and the attempts to and so far has been relatively successful at sidestepping the federal courts.

GARCIA-NAVARRO: I mean, people could make tens of thousands of dollars, I assume, and have their legal fees reimbursed from the defending lawyer if they win.

SEPPER: Yes. So it's $10,000 per person per abortion. So you could imagine a doctor or a nurse or a receptionist, a Uber driver. So the bounty adds up rather quickly. And another thing to note is that this allows individuals to file suits anywhere in the state. So an abortion provider could be required to go defend herself 500 miles from her office and home. So it's really meant to harass people who regularly perform abortions or intend to perform abortions.

GARCIA-NAVARRO: As we mentioned, the Supreme Court did not block this law, at least for now. Does that mean that this could start straight away, that people could start suing abortion providers, nurses, people who drive people to an abortion clinic?

SEPPER: Yes. As of Wednesday, it was possible for individual bounty hunters to file lawsuits for any abortion past that six-week mark.

GARCIA-NAVARRO: Have we seen that happen yet?

SEPPER: We haven't seen it happen yet. One thing that abortion clinics are doing is securing temporary restraining orders against the most likely bounty hunters, Texas Right to Life and a number of high-profile individuals who have been running a tip line, where folks can report any suspicion of an abortion happening.

GARCIA-NAVARRO: So what is next in terms of this actual law's legality?

SEPPER: The initial litigation, which went to the Supreme Court, where the providers were asking for an emergency injunction against the law, is still alive. It's at the Court of Appeals for the Fifth Circuit. So depending on what the Fifth Circuit decides, it could go back to the district court. We could eventually see that district court enjoin the law or enjoin some applications of that law. Other potential litigation could involve live lawsuits if we see plaintiffs filing lawsuits in the state courts against abortion providers or people who aid and abet abortion. Then we would see an array of defenses based in the Constitution, among other things.

GARCIA-NAVARRO: That's Elizabeth Sepper, a law professor at the University of Texas. Thank you very much.

SEPPER: Thank you. Transcript provided by NPR, Copyright NPR.