As is typically the case with legal news, it is very possible to follow the main stream media and get a very inaccurate perception of what is happening in the courts.  This misreporting isn’t intentional, it’s just that most reporters are not lawyers and thus miss the details that matter.  This past week, the United States Supreme Court denied a stay application related to a new Texas statute that bars abortion after the sixth week of a pregnancy and allows private individuals to enforce that bar by filing a civil case against anybody who aided the woman in getting the abortion — with the remedy being a $10,000.00 payment from the defendant to the person bringing the case.  Given the news coverage, I have three comments.

First, most of the impact of the law will come from its nuisance value.  The actual age of a fetus is an estimate.  Barring some other method that gives a more accurate estimate, gestational age is estimated based on a woman’s last menstrual period (which assumes a regular menstrual cycle and not all women have a regular cycle).    Even the woman herself may not know the exact date of conception (unless she only had sex once since her last period).    And in the early stages of pregnancy (and most abortions occur in the first trimester), it is impossible for the average person to know the gestational age of the fetus by simply looking at the woman.  So unless the woman tells her friend who is driving her to the doctor’s office that she is ten weeks pregnant, the friend will have no idea that the gestational age is beyond six weeks.  While I haven’t read the full statute, it seems at first glance that it will be hard for plaintiffs to win.  But, particularly for abortion providers, the new statute will mean that they are regularly in court with significant legal expenses and average people might be reluctant to help their friends given the expense of defending against these claims.

Second, the empowering of private citizens to bring claims on behalf of the government is not new.  The exact way that these cases will work might have some new wrinkles, but there is an established legal procedure known as qui tam (a shortened title for a latin phrase that translate as “he who sues in this matter on behalf of the king as well as for himself”).  As the reference to the king in the translation hints, this procedure is quite old.  Usually, in the U,S., qui tam statutes involve allowing those with inside information to bring fraud claims on behalf of the government.    If certain legal requirements are met, the successful qui tam plaintiff splits the recovery with the government.  Even without the precedent of qui tam, however, it is clear that any legal claim is state action for the purpose of constitutional law which is why libel suits are restricted by the First Amendment. Continue Reading...