From Kansas to Tennessee, U.S. states are copying a novel legal tactic from Texas to turn neighbors on each other and strip residents of their rights.

In 2021, Texas passed SB 8, an aggressive law that outlawed abortion after six weeks. In practice, this banned almost all abortions since most people don’t learn they’re pregnant so soon. Texas imposed the bill nearly one year before the Supreme Court ended federal abortion protections in Dobbs v. Jackson Women’s Health Organization. 

SB 8 clearly violated accepted constitutional law under Roe v. Wade, which had made abortion legal nationwide since 1973. But Texas had a plan to get around that pesky fact. 

Since imposing criminal penalties against pregnant people seeking abortions or doctors who provided them would likely have gotten the law declared unconstitutional and overturned pretty quickly, SB 8 is enforced through civil lawsuits rather than by the government. That is, everyday people—not state prosecutors—enforce the law.

This legal loophole is the reason SB 8 is nicknamed the “bounty hunter” law. It encourages people to sue their neighbors for having an abortion. Their incentive: money. 

Now, the Texas bounty hunter strategy is being deployed nationwide—and testing the legality of this theory.

Supreme Court skirts the problem

Texas’ idea to rely on civilians rather than the government to enforce its abortion ban did bypass the constitutional issue created by Roe. But it also created a new legal problem. 

Usually, in order to bring a suit for a financial reward, a person has to show they have “standing,” meaning they were directly harmed in some way. Texas SB 8 apparently requires no such standing. Anyone can sue a person they suspect has had an abortion. 

Financial settlements on civil lawsuits are also typically based on the harm one suffered. But with the bounty hunter law, the financial settlement seems to be treated more as a payment for reporting abortion patients to the state than restitution for actual distress. 

SB 8 should have been thrown out as unconstitutional on those grounds. Instead, when a challenge to Texas law reached the Supreme Court in 2021, the justices decided to sidestep untangling this convoluted legal strategy. 

In Whole Woman’s Health v. Jackson, the Court ruled that the case could not proceed against judges or clerks but could proceed against licensing authorities. That decision, however, would not block the implementation of the law. This maneuver allowed SB 8 to stand without the Court actually ruling on its constitutionality.

To date, no lawsuit has successfully been litigated under SB 8. But in 2023, the architect of the law, right-wing lawyer Jonathan Mitchell, helped a Texas man file a wrongful death suit against his wife’s friends for helping her obtain an abortion. The case was eventually dropped, but only after nearly two years of what one of the defendants called “abusive litigation.” 

Critics of the law also warn that bounty hunter mechanisms could financially incentivize domestic abusers to sue if their partner........

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