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'Insidious,' 'draconian,' 'cruel': New Texas abortion law empowers vigilantism, experts say

Abortion advocates in Texas say the law will encourage their opponents to flood courts with lawsuits that will cripple their ability to operate.
Protesters rally against a bill outlawing abortions after a fetal heartbeat is detected outside the Texas state capitol on May 29, 2021, in Austin.
Protesters rally against a bill outlawing abortions after a fetal heartbeat is detected outside the Texas Capitol on May 29 in Austin.Sergio Flores / Getty Images file

For Anna Rupani, harassment comes with the job.

As the co-executive director at Fund Texas Choice — a practical-support abortion fund in Texas that helps women travel to places, both in and out of the state, where they can receive abortion care — she’s been the target of protests, violent threats, online bullying and terrifying mail.

But should a novel law in her state go into effect Sept. 1, those who oppose her work will be able to express themselves through the courts — with the likely practical effect of suing her fund and others like it into oblivion.

That law, known as S.B. 8, bans abortions in Texas as early as six weeks into pregnancy — before many women even know they are pregnant. But unlike every other anti-abortion law, Texas' unique ban will be enforced through private citizens' lawsuits, rather than through state government. It includes first-of-its-kind language that allows anyone, even someone outside Texas, to sue an abortion provider or anyone else who helped someone get an abortion after the six-week limit for at least $10,000 per defendant.

"This is basically all to create a chilling effect. Even if these lawsuits are thrown out, organizations like ours will have to keep defending themselves in court every time," Rupani said. "It's all about putting us out of business."

Targets could include not only abortion funds and practical support organizations that provide women in need with money, transportation, lodging, recovery care and child care, but also doctors, nurses, domestic violence counselors and even friends, parents, spouses and clergy members who drive a woman to a clinic or even just provide counseling about whether to have the procedure. Abortion-rights groups have filed a suit in federal court seeking to block the law from going into effect.

Abortion-rights advocates in Texas say the law will encourage their opponents to flood courts with lawsuits that will cripple their ability to operate — their limited time and resources spent on fighting suits instead of care and support. If that happens, women will be isolated from the little support available to them during these vulnerable moments. In interviews, they called the law “insidious,” “draconian,” “cruel” and “pernicious.”

Experts who study and track abortion access, however, said the law is actually the embodiment of a broader, more extreme and increasingly aggressive wave of vigilantism that, at least in the anti-abortion movement, began with protests and sporadic acts of violence. The threat then moved online, they said, and now, in Texas at least, it has moved to the courts, where abortion foes will be empowered to hunt for financial bounties by suing their opponents.

Elizabeth Nash, a state policy analyst at the Guttmacher Institute, a research organization that studies reproductive health rights, said one of the law's most concerning pieces is that its enforcement was in the hands of individuals, not law enforcement, eager to shut down and harass abortion clinics and support providers.

“It literally provides a financial incentive for the kind of harassment and vigilantism we’ve seen grow decade after decade,” she said.

Legal experts said that if the law is upheld, anti-abortion activists will face an uphill battle proving in court that other people’s abortions are personally injurious to them, the typical hurdle for allowing this kind of a lawsuit to advance in court. Still, it will nevertheless bring mischief for abortion care advocates, legal experts said, by inviting frivolous lawsuits that abortion supporters will have to pay to defend against, even if they win every single one.

“It’s the legalization of harassment without holding the government liable,” Rupani said.

Meanwhile, Texas Gov. Greg Abbott, a Republican, has lauded the bill as a measure that “ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.” Its author, Republican state Sen. Bryan Hughes, has frequently spoken of his belief that the bill will more effectively stand up to legal challenges than previous ones that relied on law enforcement, and at least one prominent anti-abortion group, Right to Life East Texas, has vowed to begin suing individuals under the law as soon as it goes into effect.

'It's bounty hunting'

S.B. 8 doesn't outright criminalize abortions after six weeks, but rather encourages civil lawsuits at the municipal, county and state level targeting the process by which a woman might seek abortion care.

The law is also uniquely designed to disadvantage defendants, experts said. All damages would go right into the plaintiff’s pocket. If a defendant wins, they still must pay their own legal fees, but if a plaintiff bringing a suit wins, the defendant must pay both sides’ legal fees. Individuals who are thought to be helping a woman obtain abortion care can be sued multiple times by different people and parties.

“It bakes in incentives and takes away disincentives for vigilante enforcement,” said Adriana Piñon, a senior staff attorney and policy counsel with the American Civil Liberties Union of Texas.

“It’s bounty hunting,” added the Rev. Katherine Ragsdale, president of the National Abortion Federation. “Abusive spouses, disapproving parents, angry neighbors or people with no relation at all will all have a legal right to harass,” she said, before connecting it to a broader rise in extremism in recent years.

“This kind incentivized vigilantism isn’t just about abortion issues. It’s private individuals patrolling the border with guns; it’s insurrectionists storming the U.S. Capitol. Now it’s the ability to sue about helping with or providing abortion care,” she said. “It’s part of a growing level and climate of vigilantism and violence that large chunks of the country feel is justified.”

‘A new and frightening chapter’

The use of aggressive tactics against abortion-rights groups is nothing new. But the prevalence and intensity of those tactics have grown in recent years.

According to NAF’s latest violence and disruption report, acts of violence and disruption targeting abortion providers — including invasions, trespassing, assault and battery, death threats and threats of harm, hate mail, hate calls, hate emails and bomb threats — rose 22 percent to more than 153,000 incidents in 2019 (the most recent year NAF has assessed), an all-time high, the majority of which were incidents of picketing.

Multiple officials at abortion funds and abortion clinics described a huge uptick in hacking and online bullying in recent years, too.

That includes Amy Hagstrom Miller, CEO of Whole Woman’s Health, a network of abortion clinics across Texas, and a plaintiff in a federal lawsuit to block S.B. 8 from going into effect, who said her group has seen hundreds of attempts by hackers to take her group’s site down and access her group’s databases.

But because of S.B. 8, she and numerous others said, the venue for that kind of intimidation would now be the U.S. court system.

“It’s the unusual next venue for that kind of surveillance and harassment and intimidation that anti-abortion folks have engaged against clinics and patients for decades,” she said.

“But it’s nonetheless yet another new and frightening chapter, because it’s formalized the ability for the anti-abortion movement to have a private cause of action against clinics and people helping others get to the clinic,” she added.

Lawyers working on the suit to block the law from going into effect have expressed cautious optimism about their case, even though they are challenging a law that was cleverly designed with a new, untested enforcement mechanism in mind.

“We don’t think Texas’ strategy is going to be successful because, even though private individuals are enabled to file suits, ultimately there are still government officials in charge of enforcement of the law. It’s just that these officials are in the court system, not law enforcement,” said Marc Hearron, who as senior counsel at the Center for Reproductive Rights is working on the suit.

But abortion-rights advocates say that doesn't matter: If the law is upheld, the avalanche of lawsuits still means just about anyone who opposes abortion could use the court system to stop people like Zaena Zamora, who runs the Frontera Fund, which provides money for care and travel. As a result, Zamora could be sued by countless people for each woman she has helped receive abortion care.

Last year, Zamora helped about 400 women who live in the southern-most tip of Texas, predominantly Hispanic and below the poverty line, travel within and outside of the state to receive care. That would amount to a minimum of $4 million in damages owed, plus legal fees for both sides in each suit. Zamora's yearly budget for practical support and abortion care funds is below $100,000.

“It would bury us in litigation and bills that would undoubtedly stop us from doing the work we do,” Zamora said. “Imagine being able to pocket $10,000 for harassing a group like ours. The cruelty is the point.”