On May 19, 2021, Gov. Greg Abbot signed a law that outlaws abortions in Texas. The new measure went into effect on September 1, 2021. The first-of-its-kind legislation in the country makes it illegal for healthcare providers to perform or induce an abortion if an ultrasound scan can discern what the new law defines as a fetal “heartbeat.” This is usually at around the six-week mark.
The new abortion law in Texas has sparked heated debate and controversy not only because it infringes on women’s abortion rights but also its so-called “bounty system.” Its legal provisions allow any private citizen to file a lawsuit against abortion providers and other parties.
This article explores everything you need to know about the new Texas abortion laws and what they mean.
Why Did Texas Ban Abortions
When Abbot signed the new bill into law, he stated in part that the “creator” has “endowed” every human being with the “right to life.” Yet, for millions of children all over the world, that right is stripped from them. The Texas legislature worked together on a bipartisan bill to pass a law that ensures every unborn child is protected from the “ravages of abortion.”
The new law’s enactment came weeks after the US Supreme Court indicated that it would hear a case concerning a Mississippi law challenging Roe v. Wade. The law seeks to criminalize abortions carried out at 15 weeks or later. It will be the first major abortion case presented before the newly constituted, conservative-majority bench and could have far-reaching implications on Texans as well.
When Was Abortion Legalized – Roe v. Wade
In a 1973 landmark ruling, the Supreme Court held that abortion was a guaranteed right under the US Constitution. It declared that abortions could not be prohibited by state governments for fetuses considered “non-viable.” A non-viable fetus aged 24 weeks or less cannot survive outside the mother’s womb.
Texas Senate Bill 8, also referred to as the “heartbeat bill,” prohibits abortion after an embryonic heartbeat can be detected in an ultrasound. This is typically six weeks after conception and is often before a woman even realizes she is pregnant.
The Supreme Court has previously struck down heartbeat bills such as this one. Why? They are in direct contravention of constitutionally protected abortion rights, which allow a woman to terminate a pregnancy within the 24-week viability window provided by the 1973 ruling.
Texas abortion providers took to the Supreme Court to block the restrictive law, raising concerns over its constitutionality. While the 9-bench court acknowledged the seriousness of their application, they also stated it presented new and complex procedural questions that they were unable to address.
The main issues raised by the court were whether the defendants in the case (the state officials) were the appropriate targets in the suit since they are not the entities charged with enforcing the new Texas law. They also questioned the court’s jurisdiction to order state courts to reject cases under Texas Senate Bill 8.
In its conclusion, the Supreme Court stated that it was not purporting to definitively resolve any substantive or jurisdictional claim in the providers’ lawsuit; that its order was not based on whether the new abortion law in Texas was legal or not; that it was not limiting any other future “procedurally-correct” challenge to the novel Texas law both in the Supreme Court and in the state courts in Texas.
As a result of the Supreme Court’s failure to block the new law from going into effect, Texas became the first state in the country to ban abortions after the six-week mark. Although 12 other states have enacted similar early-term legislation, none have been implemented due to the pending legal challenges questioning their constitutionality.
Are Abortions Legal in Texas – What the New Law Has to Say
For many women across the country, the all-important question is – When is it too late to get an abortion? The short answer is – after 24 weeks. In Texas, however, the answer to that is six weeks.
According to abortion statistics from the Centers for Disease Control and Prevention, women between 20 and 29 years of age account for 57.7% of all reported abortions every year. 92.2% of abortions occur at around 13 weeks of pregnancy, while 6.9% are performed at the 14 to 20-week mark. 38.6% of all abortions are done at less than nine weeks of gestation.
What exactly is contained in the new bill? Here are the highlights.
Civilians Wield the Power
Unlike conventional legislation, the enforcement of the new Texas abortion law rests on private citizens instead of the government. Here’s how.
A patient cannot be sued under the new law’s provisions. Instead, the abortion provider and any other entity that assists with the abortion can be held liable – and by anyone. The legislation also expands the scope of civil lawsuits to prevent providers from using the constitutional right to abortion as provided for under Roe v. Wade as a legal defense against being sued.
An excerpt from Sec. 171.207 states, in part, that the law shall be enforced exclusively through the civil actions of private citizens. It goes on to state that no enforcement of the law can be conducted or threatened by the state, an employee, an executive, or an administrative officer of the state, a political subdivision, or a county/district attorney.
It effectively means that not only is a private citizen allowed to sue a provider or any other entity aiding in abortion, but the state is also prohibited from attempting to enforce the law. In addition, the language used to craft this legislation is designed to sidestep any legal action challenging its constitutionality, a maneuver that has held up in the Supreme Court.
In its September 1 ruling, the court cited this section of the Texas law in its rejection of the emergency injunction filed by providers to block the new legislation. Part of Justice Sonia Sotomayor’s dissent stated that the Texas legislature skirted constitutional precedent by using private citizens to pursue what the state legally cannot.
Any Private Citizen Can Sue Whether or Not They Were Directly Involved
Sec. 171.208 allows “any person” other than a state or local government employee or officer to bring a civil suit against any party found to be aiding and abetting an abortion. This expands the legal concept of “standing,” where one party sues another to get monetary compensation for harm or injury they suffered.
The new Texas abortion law does not require any such relationship to exist for a lawsuit to have legal standing in court. Instead, anyone can sue for legal remedies, whether or not they suffered direct harm. This essentially means that anyone can have legal standing and, therefore, anyone can sue for “generalized grievances.”
Patients Cannot Be Sued
Sec. 171.208 further outlines the parties that can be held liable for damages under the new law. It states that anyone who carries out or intends to carry out an abortion on a patient, as well as any other person or entity that does not adhere to the new state rules by aiding or intending to aid with such abortion, can also face civil action.
While the patient cannot be held liable for their decision to procure an abortion, any other party that aids them in getting the abortion can be sued. This includes everyone from the doctor performing the procedure to the Uber or Lyft driver taking the patient to get an abortion, whether or not they are aware of their passenger’s intentions. Even a family member who helps pay for the abortion can be sued for aiding and abetting.
A “Bounty” Reward for Successful Suits
The court will award a plaintiff $10,000 in statutory damages if they successfully win the case, the costs of the suit and attorney’s fees, and what it terms as “injunctive relief” to prevent the defendant from violating the law in the future.
The $10,000 “bounty” will be awarded for every abortion the defendant performed, and the injunctive relief can be any amount the court deems appropriate to act as a deterrent. This section of the law essentially provides an incentive for plaintiffs to sue.
One Payment per Abortion
While a defendant can be in court over a single abortion several times, the court can only collect relief from the same defendant over said abortion only once. For instance, if five different plaintiffs sue a provider for a single abortion, only one of them can collect damages.
The law doesn’t prevent the defendant in a suit from defending themselves in multiple suits brought against them, whether or not damages have already been awarded in a previous suit. As a result, they still have to incur the costs associated with each instance of the suit, not to mention the time lost.
Four-Year Statute of Limitations
Any plaintiff wishing to sue a provider or any other party involved in abortion has a four-year window to bring the suit. This gives potential plaintiffs ample time to bring a civil lawsuit against a defendant long after the abortion was performed.
Narrow Scope of Legal Arguments
The law puts a cap on the number of legal arguments that can be used to defend against a suit. Some of the arguments whose use it bars include:
- Civil action violating the patient’s constitutional rights
- The provider receiving explicit consent from the patient to perform the abortion
- The belief that the law is unconstitutional
Legal experts contend that barring the use of the law’s unconstitutionality as a legal defense in court might prove difficult to enforce.
A Serial Plaintiff Can Litigate Each Case Separately
If a single plaintiff brings dozens of civil suits against several clinics across the state with similar allegations, each case will be litigated regardless of the outcome of previous ones. Every case is treated independently of the others.
For instance, if a plaintiff sues multiple defendants over the same charge and they end up losing the initial case, subsequent defendants cannot use that as a basis to stop the litigation they’re currently facing. The plaintiff is protected by a legal doctrine known as “non-mutual claim preclusion.”
The Burden of Proof Rests With the Defendant
The law provides in great detail the arguments that a defendant may use. One of them includes that they had a reasonable belief the individual inducing or performing the abortion using an abortion pill Texas or otherwise, complied or intended to comply with the law. The defendant has to prove beyond a reasonable doubt that they believed the abortion was legal.
Defendants Can Never Recover the Costs of the Suit
This effectively prevents the court from awarding the defendant their costs or attorney’s fees even if they successfully defend against the suit. This section of the law is skewed in favor of the plaintiff since they are guaranteed to recover the costs of the suit if they win the case, over and above the damages, they’ll be awarded.
A Rapist Can’t Sue Over an Abortion
A provider performing an abortion on a victim of rape, sexual assault, or incest cannot be sued by the perpetrator. The law, however, doesn’t bar anyone else from suing the provider for carrying out or inducing that specific abortion, regardless of the circumstances that led to the conception.
Can You Get an Abortion Without Parental Consent in Texas
Texas abortion laws require minors to get legal consent from their parent or legal guardian before getting an abortion. There are some exceptions:
- Minors who are legally emancipated don’t need consent
- In case of a medical emergency
- If the minor receives permission from a judge
Nonetheless, based on the provisions of the new Texas laws, it would still be illegal for a minor to procure an abortion after the six-week mark. A parent or legal guardian who helps a minor get an abortion can be sued for aiding and abetting.
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