It's apparent that reasonable discussion of abortion may no longer be possible (even its name is contentious) but let's endeavor to focus instead on this remarkable, and peculiar, law. I think it's no exaggeration to describe it as grotesque regardless of where one stands on whether or not abortion should be prohibited. Those who are convinced abortion is a dire sin or a criminal act akin to murder may not care whether it makes any sense from a legal perspective or whether it is or is not constitutional, true. But any lawyer should care, and a lawyer I am and have been for a long time. As a lawyer, I find it an ugly and distorted thing, as laws go.
It's unsurprising that it's been drafted, very deliberately, in an effort to avoid a constitutional challenge based on Roe v. Wade and successor cases. But it's not artfully drafted in any sense. It's clumsily written. The evasion it attempts is ham-handed, even stupidly obvious. It appears to be a cut-and-paste job. It's as if the drafters took a law intended to make abortion a criminal offense, and then altered it in as heavy-handed a way as possible to make of it a civil law, granting a civil cause of action to private citizens.
Reading it, I was reminded of an old SCTV skit in which Rick Moranis and Dave Thomas were editing film using cleavers. It's a Frankenstein's monster of a law, consisting of odds and ends from other laws stitched together.
It achieves its apparent purpose, to make a criminal law a civil cause of action, by first granting standing to sue to people who suffer no direct harm or risk by virtue of the prohibited acts. It stands standing on its head, in a manner of speaking; standing is not standing for purposes of this law. Then, it grants "damages" in a minimum amount of $10,000 to a prevailing party who is not damaged by any of the prohibited acts in any sense otherwise recognized in the law. Thus, damages are to be awarded to those who sustain no damages. In addition, it provides for attorney's fees to be awarded to a successful plaintiff, but not to a successful defendant. It makes any lawyer who defends a defendant liable for those attorney's fees. It limits defenses which can be raised to the point where there is virtually no defense against an action. Every effort is made, seemingly, to encourage suit and discourage any contest by making it very likely that a plaintiff will be successful.
It's clearly a parody or perversion of the laws that make a private citizen a "private attorney general" to protect the public from harm for, e.g., civil rights violations, environmental damages, lack of transparency in government, and other laws which contain similar "fee-shifting" provisions. It's clearly an effort to impose a fine, or penalty or forfeiture in the guise of "damages." It's brazenly, cynically, grotesque. No effort is made to give it even the appearance of a just, equitable law.
Our Supreme Court has managed to duck the serious constitutional questions it acknowledges are presented by the law, thus assuring its enforcement until such time as it cannot be ignored by the Justices. The wisdom of this evasion is questionable. One would hope that if the Court decides to overrule Roe v. Wade it would do so openly rather than merely allowing its precedent to be so utterly ignored and over ridden.
There's much more which can be said about the law and its encouragement of litigation, and of course about abortion generally, but I'm striving to limit this post to a merely legal analysis. The fact that it is such a poorly drafted and peculiarly partial and unfair law may lead one to question it on other grounds as well, however.
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