Republican lawmakers’ move to ban nearly all abortions in Texas was accomplished through a huge, unprecedented expansion of who can bring a lawsuit against someone else: Under the law, anyone can sue anyone who performs, aids or intends to aid in an abortion — regardless of whether they have a personal stake in the abortion performed. “It’s wide open,” said David Coale, an appellate lawyer in Texas. “That is a radical expansion of the concept of standing.” The expansion has far-reaching legal implications, legal experts say, by challenging the very notion of what a court is for and emboldening civilians to enforce law, a duty traditionally left to the government. It’s also a reversal by Texas Republicans on tort law, in which they have typically sought to limit the ability to sue, not expand it. Legal experts also told The Texas Tribune that the measure is part of an emerging trend in Republican-dominated governments that find it difficult to constitutionally prohibit cultural grievances. Instead, they empower civilians to sue for civil remedies. “It’s a way of back-dooring and winking while constitutional violations are occurring,” Michaels said. “It is compromising democracy.”
Texas’ abortion law goes much further. Typically, in tort law, which is used to compensate people who have been injured, a person must have incurred some sort of personal harm in order to sue someone else. That’s the very nature of what a civil court is intended to remedy in such a case, several legal experts told the Tribune. Texas’ new abortion law, however, gives that privilege to anyone. The measure was designed to avoid federal questions of violating the constitutional right to an abortion, which has been recognized by federal courts since Roe v. Wade nearly 50 years ago. The “open question” is whether standing is something that courts consider only to figure out who is allowed to sue under any given law or if, as Coale put it, standing is something that is so central to the nature of what a court is that it constrains the Legislature. Either way, he said, Texas is in “uncharted water.” “The concept of a private attorney general is very well known,” he said, “but the concept of this [type of] private attorney general is way out there. I cannot think of an analogue to it.”