Texas anti-abortion law is not a whistleblower law

Texas’ new law that effectively bans abortions in the state (SB 8) contains a provision allowing citizens to sue those involved in performing abortions. Under this bonus provision, when an action is successful, the plaintiff can receive cash judgments of $ 10,000 from those he is suing.

This bonus provision has been compared by some to whistleblower reward laws, which compensate individuals for exposing violations of the law. However, whistleblower law expert Stephen M. Kohn explains that Texas law is in fact not a whistleblower law and has nothing to do with the whistleblower reward laws. ‘alert.

Texas anti-abortion law has been described as a whistleblower law, is that correct?

Kohn: No, Texas law operates on entirely separate principles from whistleblower laws and is at odds with the US legal system. Texas law allows self-defense. It allows individuals to take justice into their own hands. Whistleblower laws, on the other hand, marry the whistleblower to the responsible federal agency.

All modern whistleblower laws bind the whistleblower directly to the government. Under some laws, the whistleblower has no right independent of the right to testify to the government. And under a law, where they can take legal action, it is filed on behalf of the government and ultimately the government has full control of the action and can dismiss it at any time. .

With these checks and balances, whistleblower laws are not vigilantism. Texas law, on the other hand, removes law enforcement agencies from the law and promotes self-defense.

How does Texas law compare to the Dodd-Frank whistleblower law?

Kohn: There is no similarity. Under the Dodd-Frank Act, the whistleblower gives evidence of the crime to the government, and only the government prosecutes. In Texas law, the role of government is specifically prohibited. It is a perversion of the whistleblower process found in the Dodd-Frank Act.

How does Texas law compare to qui tam provisions of the False Claims Act?

Kohn: Texas law does not share the fundamental principles of the False Claims Act (FCA). First, under the FCA, whistleblowers sue on behalf of the United States government. Texas law, on the other hand, is purely private. Second, under the FA, a whistleblower must provide the government with all of their evidence. In Texas law, such a procedure does not exist because the state cannot intervene. Third, under the CFL, the United States government can step in and take over the action, turning it from semi-private action to government action. Under Texas law, such intervention is prohibited. Fourth, the United States as part of the FCA still remains involved. They can dismiss the lawsuit at any time, they can impose restrictions on discovery, and they must approve the settlements. So although the FCA gives some power to an individual to pursue a claim, the ultimate authority rests with the government.

In addition, the penalties in an FCA case are only based on the harm suffered by the government. There is no private right of action, a whistleblower alone cannot obtain any compensation. It is only based on how the government has been wronged. Finally, the constitutionality of the FCA was not based on the right of a citizen to become a vigilante or to take justice into his own hands, which is what Texas law does. The constitutionality of the FCA has been predicted on what is called an “assignment of interest,” which means that the law understands that all rights involved in the case are those of the United States government. The government has simply chosen a particular way of paying people who provide invaluable services to help the government enforce the law.

There are many guardrails in FCA that prevent self-defense and abuse. These include the right of a defendant to obtain attorney fees from any whistleblower who abuses the process.

How does Texas law give individuals the power to enforce the law without any state control over other whistleblower laws?

Kohn: The Texas law explicitly violates one of the most important whistleblower laws ever passed: the Civil Rights Act of 1871, which protects the constitutional rights of all citizens, including the rights of whistleblower and freedom of expression. The law was also known as the anti-Klu Klux Klan law. During Reconstruction, the KKK, often obscured by local legal authority or acting when the local legal authority was only reacting, carried out vicious attacks on the rights of individuals. Thus, the Civil Rights Act of 1871 was passed to prohibit this type of self-defense. The law did not prohibit private actions carried out directly by the state. Instead, he used the concept “under cover of the law”. Back then, private citizens could act “under cover of the law” to enforce laws against intermarriage, segregation, keep African Americans off juries. If there was a law in place, then the Klan men could get over it and say “I’m just trying to uphold the law” when they commit terrible rights violations. The Civil Rights Act of 1871 targeted this kind of misconduct which is a stain on democracy.

Texas law’s attempt to keep law enforcement out of the law is a return to the outrages of the Klu Klux Klan during reconstruction. It opens the door to citizen vigilance “under cover of the law” that fueled the worst abuses African Americans suffered in the most vile episodes of Reconstruction.

This article was written by Geoff Schweller.

Copyright Kohn, Kohn & Colapinto, LLP 2021. All rights reserved.Revue nationale de droit, volume XI, number 259

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