SMU Law Review Forum


Many people are deriding (or celebrating) the exceptional—and exceptionally deceptive—device of the Texas legislature to so-called “deputize” private individuals as government enforcement agents to carry out a state anti-abortion law that, at present, violates the U.S. Constitution. The law at issue, commonly referred to as Senate Bill 8, is extraordinarily broad, and provides that anyone can sue anyone who “aids or abets” an abortion after about six weeks of pregnancy (including, if read literally, the Uber driver who drove the woman to the clinic). The law awards recovery of no less than $10,000 and makes no exceptions for pregnancies resulting from incest or rape.

Actually, the deceptive nature of the law can be subdivided into three devices. I’ll address each in turn with the principal aim of suing someone under federal law for bringing suit under the Texas state law. In this respect, I’ll be going quite a bit further than those who seek simply to spotlight the unconstitutionality of the Texas law. Rather, I’m going after the plaintiff who sues under it.

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