In the wake of Texas law SB8, the reactions have been as one might expect. One side are the pro-choice advocates who decry the fact that men could ever believe they have the authority to comment on, let alone legislate, the decisions a woman makes with her own body. They euphemistically declare that Texas has ushered in a war on women’s reproductive rights and that when you really think about it, we are not that far removed from the Handmaid’s Tale. On the other side are the staunch pro-lifers, who celebrate what they consider a massive win for the lives of countless unborn children. For the pro-life crowd, the Texas law is a model for overturning Roe v. Wade and an example that state legislatures across the country should follow. Both of these perspectives miss the mark.
I am a strong supporter of the pro-life movement and I long for the day when abortion is broadly considered one of many stains on American history rather than a cause to be championed.
I am wholly unconvinced that the use of vacuum aspiration to remove a fetus from utero and dis- pose of its dismembered remains is anything other than state-sponsored barbarism, let alone an empowering “right.” I am equally unconvinced by the claim that one cannot comment on a moral dilemma unless they have or will experience the dilemma themselves, a proposition which reduces ethics to mere anecdotal experience rather than a foundational pillar of civil society. Finally, I believe with every fiber of my being that future generations will view abortion in the same light as our generation views the practice of chattel slavery. Believing in the pro-life cause as strongly as I do, I am still uncomfortable with the new Texas law and I would advise my fellow pro-lifers to think long and hard about the precedent that this law sets. My concern relates to the idea of standing.
In most civil cases, the person bringing the suit must have standing to sue, or, put another way, the plaintiff must have been harmed by the actions of the defendant in order to bring suit. Take wrongful death suits as a case study that elucidates the idea of standing. In Pennsylvania, according to the law firm Cooper, Schall & Levy, only a deceased person’s spouse, children or par- ents may bring a wrongful death civil suit since they would have been immediately harmed by the death of the victim. While it did not take place in Pennsylvania, the case of O.J. Simpson is an excellent example of standing in a civil suit. After being found not guilty in the murder of his ex-wife Nicole Brown Simpson and her friend Ron Goldman, the families of Brown Simpson and Goldman brought a wrongful death civil suit against O.J. Simpson, in which they were awarded damages exceeding $30 million. Someone living in Radnor Township who had not been harmed by Nicole Brown Simpson’s and/or Ron Goldman’s death could not have brought a suit in California against O.J. Simpson. They lacked standing to sue.
SB8 expands the doctrine of standing to an inappropriate degree. Section 171.208 of the law states that “any person, other than an officer or employee of a state or local government entity in this state may bring a civil action” against those who perform abortions or aid in the process of performing an abortion. To bring a suit against someone involved in an abortion after a fetal heartbeat is detected in Texas, a plaintiff must have knowledge of the defendant’s involvement, but need not prove personal harm. Accord- ing to John Seago, the legislative director for Texas Right to Life, “they [plaintiffs] have standing because the legislature gave it to them. You don’t have to be personally harmed.”
One can see a world in which a resident of Dallas brings suit against a known abortion provider in Houston without having been harmed by the abortion performed in Houston. While I support a prohibition on abortions after a fetal heartbeat is detected, I worry that the complete re-writing of standing in this law sets a precedent for civil litigation that is difficult to come back from. Had the law specified that only the father, grandparents, aunts, uncles or (after a post-abortion conversion) mother of the unborn child bring suit against an abortion provider, I would have no reservations about the law.
While the pro-life cause is a noble one, it must achieve its ends without taking a battering ram to the foundational legal doctrine of standing. A pro-life movement that focuses more on expanding the Due Process and Equal Protection clauses of the Fourteenth Amendment to the unborn will achieve the benefits of SB8 without the same legal drawbacks.