There is no doubt in my mind that Sen. Bryan Hughes, the Senate author of Texas’ controversial “Heartbeat Bill”, is a nice, collegial guy - committed to his strongly held convictions. But, that’s not what’s at issue here.
SB 8, the Texas “Heartbeat Bill” effectively restricts access to abortion to a timeline well before the vast majority of women even know they could be pregnant while simultaneously delegating the law’s enforcement to the public via lawsuits incredibly slanted against any defendant.
In his Wall Street Journal op-ed defending his bill and its enforcement mechanism, Hughes’ headline claimed that the law is ”unconventional because it had to be.” Honestly, when I first saw the headline, my brain read it as “unconstitutional”. This instinct is reinforced when understanding more of the law’s provisions.
Without getting into the constitutionality that SB 8 represents a de-facto ban on abortion, the enforcement mechanism - an end run around the legal system - is off-putting to say the least. By delegating to citizens the responsibility to enforce law by serving as informants, snitching and suing their neighbors for allegedly being involved with a potential abortion, the State of Texas has flipped the legal system upside down.
SB 8 effectively reverses the burden of proof we have all come to honor and cherish as Americans: innocent until proven guilty. Under SB 8, the accused party of performing, participating, or being affiliated in some way with an abortion “has the burden of proving an affirmative defense.” Meaning: instead of the plaintiff having to prove their case, the defendant must prove they are innocent.
Additionally, the law sets up a system where someone can be sued for intent - even without action. This sets a dangerous precedent. Furthermore, it does not specify what constitutes intent, potentially opening the door to a wide range of possible “violations” from googling abortion providers to attending a pro-choice rally.
Now, say that under this frankly un-American legal setup the defendant wins. The law bars the defendant from recovering any relief for legal fees spent for their defense. Meanwhile, should the plaintiff prevail, they are awarded at least $10,000 plus legal fees from the defendant.
Let’s review:
- Guilty until proven innocent
- You break the law even if you were thinking about breaking the law
- If accused, you lose
Tori Moreland is a political strategist and perpetual optimist based in East Austin who’s interested in tech, futurism, and decentralization.