A new Texas law confining abortions to a brief window around six weeks from conception is two things at the same time, critics say: extremely restrictive and extremely expansive.
By prohibiting abortions once a doctor detects “cardiac activity,” S.B. 8 is effectively an abortion ban because many women may not even be aware they are pregnant at that point, critics say.
But by letting private citizens sue anyone who “aids and abets” an abortion following the roughly six-week gestation period, the law could unleash a wave of lawsuits that potentially rope in anyone from a doctor who performs the procedure to someone who drives a woman to a clinic, or someone who pays for the procedure.
Who pays the $10,000?
If they win, plaintiffs can recover at least $10,000 for each abortion prohibited under the law. The money damages could well run higher if a lawsuit has many defendants in the case, one observer noted.
“The defendant — whether a provider, funder, clergyperson, friend or family member — pays the damages which are set at a minimum of $10,000. If there are several defendants, they each pay $10,000 in damages,” Elizabeth Sepper, a professor specializing in health law and religious liberty at the University of Texas at Austin’s School of Law.
“So a single abortion could generate tens of thousands of dollars for the bounty hunter plaintiffs delegated enforcement of this law,” she told MarketWatch.
If a plaintiff wins, the defendants “and any lawyer who dares represent them are on the hook for the plaintiff’s legal fees,” Sepper added. When a case fails, defendants lack the same power to rake money from the plaintiffs for the cost of fighting the lawsuit, she noted.
A woman’s consent to the abortion is not a defense against a lawsuit, the law’s language said. A defendant also can’t argue that S.B. 8’s requirements are unconstitutional as a way to successfully fight a case, the law added.
S.B. 8 took effect Sept. 1, as a 5-4 Supreme Court vote denied an emergency appeal to halt its start.
In an unsigned majority opinion, the court said it wasn’t passing judgment on the law’s contents. Given the complex and new procedural questions, however, the majority didn’t see justification to apply the brakes on enactment.
The majority “opted to bury their heads in the sand,” according to Justice Sonia Sotomayor, writing for three of the dissenting judges. “In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures,” Sotomayor said.
The basics on S.B. 8
The law that Texas Gov. Greg Abbott, a Republican, signed in May has two parts: rules for when abortion is outlawed and rules for who enforces the laws and how much they can recoup for enforcement. This week, Abbott defended the bill, titled the Texas Heartbeat Act, writing on Twitter
that “no freedom is more precious than life itself.”
The law says a physician cannot perform an abortion once a “fetal heartbeat” has been detected. The statute defines the “fetal heartbeat” as “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.”
Utrasounds can pick up these kinds of signals around five to six weeks of gestation, University of Texas researchers said — but that occurs “before the fetus’ heart has actually developed,” they added.
For approximately 600 women seeking abortions in Texas in 2018, 58% initially called a clinic after six weeks, the researchers said.
Planned Parenthood affiliates across Texas say they are either complying with the law or not currently offering abortion procedures due to the law. But they note they have filed a lawsuit challenging the law.
The ‘unprecedented’ right to sue
The letter of the law is one thing, but enforcement is another. In S.B. 8, the terms and provisions are “enforced exclusively through the private civil actions,” according to the statute. When a plaintiff wins a case, they are entitled to damages of at least $10,000 for each abortion, plus legal costs.
Women receiving an abortion cannot be sued under the law, the University of Texas researchers noted.
The language of S.B. 8 says people who perform the abortion — as well as anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion” — can be legally liable. The assistance includes the “paying for or reimbursing the costs of an abortion.”
Still, it’s an “unprecedented provision” that gives private parties the right to sue, they said. It doesn’t matter if the plaintiff has any connection to the defendants or if they live outside Texas, they noted.
Who’s on the hook under S.B. 8? Potentially lot of people
S.B.8’s language “is so broad that anyone who offers information or referrals for abortion care, drives the patient to a facility, helps them pay for their abortion — or intends to do so — could face a civil suit,” University of Texas researchers wrote.
The national average cost for a surgical abortion at 10 weeks was $508 as of 2014, according to the U.S. Centers for Disease Control and Prevention.
Suppose a person in Texas uses Venmo to beam over cash to a friend who needs to pay for an abortion. The person sending the cash could be sued under S.B.8, Sepper said.
Right now, Planned Parenthood is abiding by the Texas law, Sepper noted. That means donors are not exposed to liability, she said. “But funding for abortion is clearly within the terms of the law — it means to chill abortion funds from helping those who can’t afford abortion and friends and family from aiding pregnant people.”