The recently passed Texas law effectively banning abortions in the state (S.B. 8) has garnered much attention for a multitude of reasons. One aspect of the law that has attracted interest is a bounty provision enabling individuals to sue those involved in performing abortions and to receive $10,000 if the suit is successful.
This provision has been likened by some to whistleblower laws which monetarily reward individuals who expose misconduct. However, in a recent interview, leading whistleblower attorney Stephen M. Kohn of Kohn, Kohn & Colapinto clearly explains why the Texas anti-abortion law is in no way a whistleblower law.
“The Texas law operates under entirely separate principles from whistleblower laws and is at odds with the American legal system,” Kohn explains. “The Texas law enables vigilantism. It allows individuals to take the law into their own hands. Whistleblower laws, in contrast, marry the whistleblower to the responsible federal agency.”
“All of the modern whistleblower laws tie the whistleblower directly to the government,” Kohn continues. “Under some laws, the whistleblower has no rights independent of giving evidence to the government. And under one law, where they can file a lawsuit, it is filed in the name of the government and ultimately the government has complete control of the suit and can dismiss it at any time.”
According to Kohn, “by these checks and balances whistleblower laws are not vigilantism. The Texas law, on the other hand, removes law enforcement agencies from the law and fosters vigilantism.”
In the rest of the interview, Kohn explicitly contrasts the Texas anti-abortion law with the Dodd-Frank Act and the False Claims Act. He outlines how under these laws, whistleblowers work in conjunction with the state. Kohn also points out that the Texas law violates the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. According to Kohn, “[t]he Texas law’s attempt to keep law enforcement out of the law is a reversion back to the outrages of the Ku Klux Klan during Reconstruction.”
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