Two groups of people are not eligible to sue: government entities and employees (whose exclusion helps insulate the law from legal challenges) and rapists (to prevent an assailant from cashing in on a victim’s abortion). Professor Ziegler said the latter prohibition seemed “less than airtight” in practice, given how few sexual assaults are reported and how difficult it is to obtain convictions.
Either way, the abortion itself would still be illegal. “If a minor is sexually assaulted and her mother helps her get an abortion,” Professor Ziegler said, “the mother could be sued, just not by the rapist.”
Understand the Texas Abortion Law
Texas officials legally insulated themselves.
Section 171.207 (Page 5): The requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement … may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person.
Section 171.208 (Page 9): This state, a state official, or a district or county attorney may not intervene in an action brought under this section. This subsection does not prohibit a person described by this subsection from filing an amicus curiae brief in the action.
Section 171.211 (Page 12): This state has sovereign immunity, a political subdivision has governmental immunity, and each officer and employee of this state or a political subdivision has official immunity in any action, claim, or counterclaim or any type of legal or equitable action that challenges the validity of any provision or application of this chapter, on constitutional grounds or otherwise.
These sections distinguish S.B. 8 from the many similar bans that Texas and other states have tried to enact before. Previous laws sought to criminalize abortion at a certain point in pregnancy, with the state prosecuting violators. But S.B. 8 establishes a civil violation — not a crime — and forbids any state agent from enforcing it. Instead, it outsources that authority to citizens.
The intent was to eliminate valid targets for abortion providers or patients to sue to challenge the law’s constitutionality. State officials, who would normally be the defendants, can use procedural objections to avoid judicial scrutiny of the law’s substance — which is exactly what happened last week.
The whole enterprise rests on the doctrine of sovereign immunity, which holds that people cannot sue states unless they are suing the specific official or agency that enforces a given law. Section 171.211 makes this explicit, asserting that Texas and all of its officials are immune from constitutional or other challenges to S.B. 8.
Notably, however, Texas reserves its officials’ right to file amicus curiae — or “friend of the court” — briefs, a powerful tool that could allow the state to influence cases while seeking to avoid oversight by disconnecting itself from them.
Lawyers are discouraged from challenging the law.
Section 30.022 (Page 15): Any person, including an entity, attorney, or law firm, who seeks declaratory or injunctive relief to prevent this state, a political subdivision, any governmental entity or public official in this state, or any person in this state from enforcing any statute, ordinance, rule, regulation, or any other type of law that regulates or restricts abortion or that limits taxpayer funding for individuals or entities that perform or promote abortions, in any state or federal court, or that represents any litigant seeking such relief in any state or federal court, is jointly and severally liable to pay the costs and attorney’s fees of the prevailing party.
Lawyers who challenge S.B. 8 or any other Texas abortion law, or represent someone who does, can be held responsible for the other side’s legal fees — a strong disincentive to accept such cases.