Keep in mind that the U.S. Supreme Court Decision was based on a lack of standing. Courts generally do not decide a case unless a lawsuit has been filed or there's strong threat that a party will file a lawsuit. The one citizen involved in the case that went to U.S. Supreme Court filed an affidavit stating that he has no present intention to enforce the law. The state of Texas said that it and it's employees cannot enforce the law and there is therefore no threat that the state will enforce the law. As far as I know, so far no one has filed a lawsuit alleging that an abortion provider was liable under the TX law.
The U.S. Supreme Court did not rule on the constitutionality of the law, but that does not mean it will not do so in the future once someone files a lawsuit based on the TX law. It is true that, at least in theory, the U.S. Supreme Court could probably continue to find reasons to avoid a substantive ruling on the TX law almost indefinitely, which would have the effect of upholding the law. However, this strikes me as highly unlikely.
I read most of the TX law. My initial impression is that it's a very odd law in many ways. It is bristles with provisions that are intended to limit defenses and to make it difficult to challenge the constitutionality of the law, while also attempting to cut all ties to the government once it's implemented. It's almost like a robotic attack ship complete with offensive and defense weapons that was built by the legislature and then set sail by the government in hopes that a private party would take control and guide it to it's intended target.
Another initial impression is that it could be quite difficult for a plaintiff to litigate a case under the law (if it ever gets to that). It's not clear to me how a plaintiff "wanna be" would be able to show sufficient facts to file a lawsuit and survive a motion to dismiss. Also, given the potential difficulty in litigating a case under the law, it's not entirely clear to me that that the potential $10k "win" creates a sufficient incentive for widespread litigation. The attorney fee provisions in the law are obviously designed to alleviate this, but I'm not sure how it would play out.
The usual disclaimers about predictions being difficult, especially when they involve the future, apply to the following. I strongly suspect the TX law will be struck down at some point. One of the main issues (as you mentioned) is that if the TX approach were to be upheld, it would open up all sorts of civil law end runs around the Constitution. One can imagine all sorts of bizarre laws. For example, suppose the TX legislature decided to create a civil cause of action allowing citizens to file a lawsuit for $10 million in damages for any public statements or actions of any type in support of a candidate who is not a Republican, or any actions or statements criticizing a Republican. Taking it a step further, how about a civil cause of action against any Democrat (or Republican) who breathes while in Texas?
And, of course, at least one lower court in TX has already gone the other way on the standing issue, even though there has not yet (to my knowledge) been a single action brought under the law.
The federal government has standing to sue over Texas’ restriction abortion law, a federal judge ruled Wednesday, when he blocked the law as “flagrantly unconstitutional.”
www.abajournal.com
