Why is it so hard to challenge the Texas law?

It’s hard to challenge Texas law because it was drafted in a novel way: it effectively delegates to private citizens to enforce it and prohibits state government from doing so.

The law empowers private citizens to file lawsuits against both abortion providers and anyone who “aids and encourages” abortions, which could include clinic staff members or even people who bring women to clinics. If such a lawsuit is successful, the plaintiff can win a judgment of $ 10,000 plus legal fees, and the judge can impose a court order prohibiting the defendant from performing or assisting in additional abortions. If the lawsuit fails, the plaintiff does not have to pay the defendant’s legal costs.

This structure means that there is no obvious and specific person who could be the defendant in a case that defies the law at first glance. Typically, a legislature that wants to restrict abortion in some way writes a law that the state would enforce, such as prosecuting doctors or terminating their medical licenses. Abortion rights advocates can then challenge such laws by suing officials who would be responsible for enforcing them, seeking injunctions ordering defendants not to enforce those laws.

However, with Texas law, there is no obvious defendant and no court order target. In parallel cases before the Supreme Court, a group of abortion providers and the Department of Justice have instead tried to sue Texas judges, clerks and other state officials. The central question for the Supreme Court on Monday is the legal technical question of the legitimacy of that approach.

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