The New Texas Abortion Law Should Scare Us All
I’m not here trying to get into the abortion debate. As a business lawyer, as you might imagine, I have clients on both the far-left and far-right of the political spectrum, and I have a whole lot of other clients who are in the middle.
We lawyers get paid to do two things, basically: keep folks (and their businesses) out of trouble, and get them out of trouble when they get into trouble.
As Americans, everyone should have a right to conduct lawful business without the fear of violence or harassment. That’s why our Anonymous LLC offering is so popular to not just folks on the far-right or far-left, but former abuse victims, the rich and famous, and more. Anonymous LLCs help prevent Internet researchers from identifying an owner of a business and “taking the law into their own hands.”
That seems really upsetting, doesn’t it? Having to take steps to prevent abuse, stalking, harassment or violence?
Texas Senate Bill 8 Permits Fanatics to Take the Law Into Their Own Hands
Doesn’t it seem obvious that it’s wrong to permit Ordinary Joe to “take the law into their own hands?” Wouldn’t it be worse still, if we allowed not just Ordinary Joe, but Crazy Tim or Fanatic John, to take the law into their own hands?
This what the new Texas law does. Don’t take my word for it, read the text of Texas Senate Bill 8 yourself.
Specifically, what I find absolutely repugnant by this law, is that it:
- Specifically permits private individuals — with no relationship to anyone — to bring a private lawsuit against anyone they believe to violate the law. Such private citizens can bring a lawsuit not just against a medical clinic, but the employees of the medical clinic, too.
- Forces defendants to have to prove the negative (i.e. if they really didn’t violate the law, how do they prove that? By showing their full list of private patient information, and the procedures that were actually performed on said patients? To Fanatic John and his attorneys??!?)
- Forces defendants to have to defend themselves by (potentially) violating HIPAA and their patients’ privacy (i.e. Defendants would need to produce copies of medical records of their patients, right? To Crazy Tim and his attorneys no less??!?)
- Permits plaintiffs to recover their attorneys fees if they win, but specifically prohibits defendants from being awarded attorneys fees if they win (See Sec. 171.208(i)).
- Will expose medical clinics operating within the law to a lawsuit, and still, unable to recapture their attorneys fees.
- The new law amends Section 4, Chapter 30, of the Civil Practice and Remedies Code by adding Sec. 30.022, which greatly handicaps people who try to challenge the constitutionality of this law by awarding attorneys fees to the prevailing party, which can be collected not just against the party making the challenge, but “an entity, attorney, or law firm” that was involved. (Talk about a chilling effect for professionals trying to test constitutional muster).
Why You Should Be Upset About This Law
As a practicing attorney for almost 30 years, I’ve found that litigation can absolutely destroy a small business. This is why we work so hard trying to keep clients out of court — they need to worry about payroll, fulfilling customer or client orders, and a whole host of other challenges aside from paying expensive lawyers to fight an expensive lawsuit in court.
Lawsuits cost money. A lot of money.
Lawsuits take time, are emotionally draining, and require business owners to divert their time and attention away from their business and to the lawsuit, participating in interrogatories and depositions, attending hearings, and most importantly, spending gobs of time sifting through business records, files and documents attempting to fulfill discovery requests.
In most states (and in most circumstances), you bear the cost of your attorneys fees and legal costs, regardless of the outcome of the litigation. This means, if someone with more funds than you wants to sue you just to put you out of business, they just might be able to do it. It comes down to, who can outspend who?
And guess what? This happens more often than you think.
So, why am I upset about this Texas law?
Because I know there are many small medical clinics all across rural America — including Texas. They don’t have gobs of cash, yet they need to pay for malpractice insurance and still operate on Ordinary Joe, Crazy Tim or Fanatic John when they get into an auto accident and refuse to have health insurance because, well, it’s their American right not to have health insurance.
Such medical clinics also provide critical women’s health services. Be that regular checkups, birth control or other services.
The Texas law places no burden on Ordinary Joe, Crazy Tim or Fanatic John. If any of them believes such a clinic is performing abortion services — even if it’s not — Ordinary Joe, Crazy Tim or Fanatic John can file a lawsuit and force that rural medical clinic to have to defend itself. That costs money. A lot of money.
That medical clinic is prohibited from getting reimbursed for its legal expenses if it should win.
That medical clinic must divert its time, attention, resources and money to the lawsuit.
That medical clinic must go through the painful decision on how much sensitive, private, patient information to disclose, to “prove the negative” to show it’s not providing abortion services.
That medical clinic must defend itself over and over again, should Ordinary Joe file a lawsuit, then Crazy Tim and then Fanatic John.
That medical clinic may need to defends its employees, too, who are named in such lawsuits.
That medical clinic won’t be in business long, will it?
Imagine your small business could be sued by anyone — even folks you have no relationship to — and not only could you not stop them and at least demand attorneys fees if you win, you would be subject to discovery by complete strangers. You may have to share trade secret information. Private information of your customers. Confidential information of employees, customers, partners, suppliers and/or owners.
How long do you think your small business could survive in such an environment — even if it didn’t actually do the proscribed behavior??!? Remember, you have to prove your innocence in court — which subjects you to everything I just mentioned above.
This is a Slippery Slope
Sure, abortion critics are rejoicing under this new Texas law. But, wholly cow, is anyone thinking just a couple of steps ahead in the future??!?
This law was written to try and circumvent constitutional safeguards by specifically prohibiting state officials from enforcing the law — and handing such power to private citizens.
Think about that for a minute: A law that skirts constitutional safeguards.
What’s next? Can you imagine such a law being put in place for gun manufacturers or gun stores?
Can you think of other businesses that could potentially be subject to this sort of outrageous lawlessness?
- Weapons manufacturers and/or retailers?
- Adult bookstores?
- Oil companies?
- Cigarette and/or e-cig manufacturers and/or retailers?
- Liquor stores?
You can be an abortion critic, but this isn’t the right path. Attempting to give power to complete strangers to file legal lawsuits against small businesses is about as Anti-American as you can get. It will undoubtedly damage and destroy many individuals and small business that aren’t actually performing abortions. It will ultimately hurt rural America who is already underserved medically (Read Healthcare Access in Rural Communities). This law will hurt women who don’t even want to consider abortions: Our mothers, our sisters and even our grandmothers.