Jurisprudence

Texas Has Found a Creative New Way to Punish Abortion Patients

Texas Gov. Greg Abbott speaks in front of American flags, gesturing with his hands.
Texas Gov. Greg Abbott at a press conference on May 18, 2020. Pool/Getty Images

Galvanized by the very real possibility that the Supreme Court is poised to overrule Roe v. Wade in the coming months, Republican-controlled legislatures around the country are racing to pass extreme new restrictions on abortion. Four states have enacted laws banning all abortions from conception; nearly a dozen more have passed “heartbeat bills” that seek to ban the procedure at six weeks. On Wednesday, Texas joined this bloc when GOP Gov. Greg Abbott signed the state’s own “heartbeat bill,” SB 8, into law. Like the other states that have passed these laws, Texas cannot actually enforce the ban under Roe, which prohibits state officials from banning abortion before viability. But lawmakers believe they have devised a workaround to Roe’s roadblock: Rather than empower state officials to implement the ban, they have granted virtually every private citizen the right to sue anyone who “aids or abets” an abortion after six weeks of pregnancy. The goal is not simply to outlaw abortions, but to terrify and punish patients by bankrupting those who support them.

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SB 8’s language is sweeping: It encompasses anyone who “aids or abets the performance or inducement” of an abortion after six weeks, before the vast majority of patients know they’re pregnant. It also applies to any person who merely “intends” to aid or abet such an abortion, regardless of whether they follow through. Almost anybody, including complete strangers, can sue the alleged accomplice in Texas state court. If the plaintiff prevails, the accomplice must pay them a minimum of $10,000 for each abortion “abetted,” plus attorneys’ fees. If a plaintiff sues an alleged accomplice and loses, by contrast, they are not required to pay their target’s attorneys’ fees—a recipe for harassing lawsuits. Moreover, the plaintiff can demand litigation in a county of their choice, forcing their target to travel hundreds of miles to defend themselves.

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The breadth of SB 8’s liability is staggering. An insurance company that reimburses the cost of an abortion after six weeks can be held liable. So can the doctors, nurses, and clinic staff who perform the abortion. A patient’s friends, family members, clergy, or rape crisis counselor may be sued if they facilitate access to an abortion banned by SB 8. By driving a patient to the clinic or helping to cover their bill, an acquaintance becomes liable under the law. These individuals can even be sued if they only form an intent to help someone terminate a pregnancy but never act on it. Donors to an abortion fund—including people thousands of miles from Texas with no connection to the patient—may also be sued because of their intent to abet abortion.

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The bill also states that an alleged accomplice may not cite their reliance on “any court decision that has been overruled” as a defense against liability. This rule applies even if the court decision “had not been overruled” at the time of the offense. In other words, SB 8 imposes ex post facto liability, penalizing individuals for conduct that was legal when they engaged in it. And it compels state courts to continue enforcing the law if a lower federal court declares it unconstitutional.

Taken together, these rules would open up a huge number of people to legal sanctions. The measure has one ostensible limitation: It does not allow an individual to sue if he “impregnated the abortion patient through an act of rape, sexual assault, incest,” or another criminal act. But only a small number of rapes are prosecuted, and fewer lead to conviction. What happens if a man impregnates a woman who gets an abortion, then sues under SB 8, and the woman accuses him of rape? The law is ambiguous, but presumably, the alleged rapist’s culpability will be adjudicated as part of the civil proceeding. As a result, the victim will be dragged into the litigation, interrogated, and retraumatized, because her rapist is mad at her for terminating her pregnancy.

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This cruelty is a feature, not a bug, of the law. Although SB 8 purports not to punish abortion patients themselves, they are its true targets. It is designed to silence and paralyze a patient’s entire support network, leaving them isolated, afraid, and alone. An individual who decided to terminate their pregnancy cannot turn to friends for help; they cannot ask a family member for assistance; they cannot speak openly with a professional counselor. Again, an individual need only formulate the “intent” to assist an abortion in any way to be held liable in court by total strangers; no patient can have an honest conversation about their decision to terminate without fear that they placed a loved one in danger of debilitated sanctions. SB 8 ensnares abortion patients in a net of legal jeopardy to frighten them out of exercising their rights.

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Texas’ approach may be novel, but its goal is nothing new. While anti-abortion groups disclaim a desire to penalize women, the reality is that it’s impossible to ban abortion without punishing abortion patients. In red states, prosecutors have repeatedly brought criminal charges against women who terminated their own pregnancies in violation of state law. These charges may relate to abortion restrictions, or they may involve creative applications of other criminal laws, like malice murder, abuse of a corpse, or unauthorized practice of medicine. Even with Roe on the books, conservative state officials have proved eager to persecute women who terminate.

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This trend will only accelerate as the Supreme Court weakens or overturns the constitutional right to abortion. It seems unlikely (though not impossible) that SB 8 will ever take effect: The bill establishes an untested system that seems destined to collapse into a mess of frivolous suits that would entangle Texas courts in an endless legal nightmare. In addition, as a group of 300 Texas lawyers, including many former judges, pointed out in a letter to the Legislature, the law seems to violate the Texas Constitution, which bars individuals from suing over conduct that did not injure them personally. Whatever the fate of this particular act, however, Texas Republicans’ long-term aim is clear. The state wants to end abortions not just by outlawing the procedure, but also by punishing everyone involved in the process. As SB 8 illustrates, there is no way to do that without punishing patients, too.

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