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Here’s What the Texas Abortion Law Says
We took an up-close look at the text of S.B. 8, which bans almost all abortions in Texas and delegates enforcement responsibility to citizens.
A new Texas law that the Supreme Court did not block last week has made abortion functionally illegal in the state. Several other states have tried over the years to limit or ban abortions before fetal viability but have not managed to maneuver past the courts.
Texas lawmakers did so through a unique legal approach. The law, Senate Bill 8, bans most abortions after about six weeks — before many people know they are pregnant — and authorizes citizens to enforce it. Abortion providers in Texas said that 85 to 90 percent of the procedures they previously performed were after the six-week mark.
To better understand what S.B. 8 says and does, I read the law in its entirety and consulted with two professors who have expertise in abortion jurisprudence — Mary Ziegler of Florida State University, who has written several books on abortion law, including “Abortion and the Law in America: Roe v. Wade to the Present,” and Melissa Murray of New York University, who co-wrote the first casebook on reproductive law and is a host of “Strict Scrutiny,” a podcast about the Supreme Court.
Professor Murray cautioned that parts of the law were written so vaguely that they “could reasonably be subject to a wide range of interpretations.”
Almost all abortions are banned.
Section 171.203 (Page 3): A physician may not knowingly perform or induce an abortion on a pregnant woman unless the physician has determined, in accordance with this section, whether the woman’s unborn child has a detectable fetal heartbeat. … The physician must use a test that is: consistent with the physician’s good faith and reasonable understanding of standard medical practice; and appropriate for the estimated gestational age of the unborn child and the condition of the pregnant woman and her pregnancy.
Section 171.204 (Page 4): A physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child … or failed to perform a test to detect a fetal heartbeat. A physician does not violate this section if the physician performed a test for a fetal heartbeat … and did not detect a fetal heartbeat.
These provisions require doctors to check for cardiac activity in the embryo or fetus using a method “appropriate for the estimated gestational age.” Early in pregnancy, that means a vaginal ultrasound because stethoscopes and less-invasive ultrasounds will not pick up anything at that stage. Abortion is prohibited if cardiac activity is detectable, and the language makes clear that doctors cannot skirt the ban by using unreliable methods of detection.
S.B. 8 defines a fetal heartbeat, which is not a clinical term, as “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” This definition includes electrical activity in developing cells that starts at around six weeks’ gestation, though there is no heart at that stage of development.
Because gestation is dated from the last menstrual period, the six-week mark amounts to about two or fewer weeks after a missed period, often the first clue of a possible pregnancy. Many people do not know they are pregnant at that point. And because it is often difficult to schedule an appointment immediately, those who do know may be unable to get an abortion before the cutoff.
The law makes exceptions for ‘medical emergencies.’
Section 171.205 (Page 4): Sections 171.203 and 171.204 do not apply if a physician believes a medical emergency exists that prevents compliance.
Section 171.008 (Page 17): If an abortion is performed or induced on a pregnant woman because of a medical emergency, the physician who performs or induces the abortion shall execute a written document that certifies the abortion is necessary due to a medical emergency and specifies the woman’s medical condition requiring the abortion.
The law does not include exceptions for pregnancies resulting from rape or incest, nonviable pregnancies in which the fetus still has detectable cardiac activity, or cases in which the fetus has a fatal and untreatable condition.
The only exception is for medical emergencies, a term the law does not define. Some conditions — like ectopic pregnancy, in which a fertilized egg implants outside the uterus, and HELLP syndrome, a severe variant of pre-eclampsia — can be rapidly fatal and are clearly emergencies. Other cases are less clear-cut, like a cancer patient who cannot receive chemotherapy while pregnant and whose disease could become untreatable within a few months, or a woman with a heart condition that causes mild symptoms but could lead to sudden cardiac arrest.
S.B. 8 leaves it to doctors to decide whether their patient qualifies, knowing they could be sued by anyone who disagrees.
Patients cannot be sued, but those who help a patient can be.
Section 171.206 (Page 5): This subchapter may not be construed to authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed or induced or attempted to be performed or induced.
Section 171.208 (Page 6): Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who: (1) performs or induces an abortion in violation of this subchapter; (2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or (3) intends to engage in the conduct described by Subdivision (1) or (2).
S.B. 8 invites lawsuits against anyone who performs or “abets” an abortion. That could mean an array of people and groups, including clinics and their employees, from doctors to receptionists; friends, relatives or strangers who pay for an abortion, including people who donate to or administer abortion funds; insurers that approve a claim; ride-share drivers who drive a patient to a clinic; and anyone who shares information about abortion options.
People can be held liable whether or not they knew, or even “should have known,” that they were helping someone obtain a prohibited abortion. They can also be liable if they “intend” to take such action, whether or not they ever follow through.
The law does not explain what qualifies as intent. Can someone be sued for considering donating to an abortion fund? For pulling up the donation page on the fund’s website? It is not clear.
The law may reach beyond Texas’ border.
Section 171.210 (Page 11): A civil action brought under Section 171.208 shall be brought in: the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; the county of residence for any one of the natural person defendants at the time the cause of action accrued; the county of the principal office in this state of any one of the defendants that is not a natural person; or the county of residence for the claimant if the claimant is a natural person residing in this state.
Residents of other states can sue someone who helps a Texan get an abortion, and it is possible they could also be sued for helping a Texan get an abortion.
Out-of-state defendants could argue that Texas had no jurisdiction over them, and it might not be feasible to enforce a judgment against them. But the law contains no geographic limit and gives plaintiffs multiple options for counties in which to sue. It is within the realm of possibility that a Wisconsinite could sue a Californian for abetting a Texan’s abortion.
Few defenses are available.
Section 171.208 (Page 7): The following are not a defense to an action brought under this section: ignorance or mistake of law; a defendant’s belief that the requirements of this subchapter are unconstitutional or were unconstitutional; a defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this subchapter. … It is an affirmative defense if a person sued under Subsection (a)(2) reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion had complied or would comply with this subchapter. … The defendant has the burden of proving an affirmative defense … by a preponderance of the evidence.
Aside from showing that no banned abortion occurred, the only valid argument for defendants appears to be if they acted on the belief, “after conducting a reasonable investigation, that the physician performing or inducing the abortion had complied or would comply” with the ban. The law does not say what constitutes a reasonable investigation.
Defendants could be liable if they act in accordance with a court ruling that is subsequently overturned. In other words, if an appellate court were to find S.B. 8 unconstitutional, abortions resumed, and the Supreme Court later overruled the appellate court, people could be sued for actions taken while the law was suspended.
Notably, the burden is on defendants to prove they did not break the law, not on the plaintiffs to prove that the law was broken — the opposite of normal legal practice.
The standard of proof is “a preponderance of the evidence,” meaning defendants must show a greater than 50 percent chance that they are right. That is the normal standard in civil trials (in contrast to the stricter “beyond a reasonable doubt” standard in criminal trials), but the burden normally belongs to the accuser, not the accused.
Successful plaintiffs will get $10,000 and their legal fees reimbursed.
Section 171.208 (Pages 6-7): If a claimant prevails in an action brought under this section, the court shall award: injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter; statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and costs and attorney’s fees. Notwithstanding Subsection (b), a court may not award relief … if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion.
Section 171.208 (Page 9): A court may not award costs or attorney’s fees … to a defendant in an action brought under this section.
If a plaintiff is successful, the court will issue “injunctive relief,” meaning a legal order, “sufficient to prevent the defendant” from performing or aiding in another abortion. Then there is the money.
Successful plaintiffs will get “not less than $10,000 for each abortion” they successfully sued over and will be reimbursed for the legal expenses they incurred in suing. The defendant, not the state, will have to pay.
In contrast, courts are forbidden to order reimbursement of legal expenses for defendants who win. If allegations are proven false, people who were accused will still be on the hook for the cost of their defense.
If defendants are sued and pay the full damages, the law says they cannot be forced to pay again for the same abortion.
Two groups of people are not eligible to sue: government entities and employees (whose exclusion helps insulate the law from legal challenges) and rapists (to prevent an assailant from cashing in on a victim’s abortion). Professor Ziegler said the latter prohibition seemed “less than airtight” in practice, given how few sexual assaults are reported and how difficult it is to obtain convictions.
Either way, the abortion itself would still be illegal. “If a minor is sexually assaulted and her mother helps her get an abortion,” Professor Ziegler said, “the mother could be sued, just not by the rapist.”
Texas officials legally insulated themselves.
Section 171.207 (Page 5): The requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement … may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person.
Section 171.208 (Page 9): This state, a state official, or a district or county attorney may not intervene in an action brought under this section. This subsection does not prohibit a person described by this subsection from filing an amicus curiae brief in the action.
Section 171.211 (Page 12): This state has sovereign immunity, a political subdivision has governmental immunity, and each officer and employee of this state or a political subdivision has official immunity in any action, claim, or counterclaim or any type of legal or equitable action that challenges the validity of any provision or application of this chapter, on constitutional grounds or otherwise.
These sections distinguish S.B. 8 from the many similar bans that Texas and other states have tried to enact before. Previous laws sought to criminalize abortion at a certain point in pregnancy, with the state prosecuting violators. But S.B. 8 establishes a civil violation — not a crime — and forbids any state agent from enforcing it. Instead, it outsources that authority to citizens.
The intent was to eliminate valid targets for abortion providers or patients to sue to challenge the law’s constitutionality. State officials, who would normally be the defendants, can use procedural objections to avoid judicial scrutiny of the law’s substance — which is exactly what happened last week.
The whole enterprise rests on the doctrine of sovereign immunity, which holds that people cannot sue states unless they are suing the specific official or agency that enforces a given law. Section 171.211 makes this explicit, asserting that Texas and all of its officials are immune from constitutional or other challenges to S.B. 8.
Notably, however, Texas reserves its officials’ right to file amicus curiae — or “friend of the court” — briefs, a powerful tool that could allow the state to influence cases while seeking to avoid oversight by disconnecting itself from them.
Lawyers are discouraged from challenging the law.
Section 30.022 (Page 15): Any person, including an entity, attorney, or law firm, who seeks declaratory or injunctive relief to prevent this state, a political subdivision, any governmental entity or public official in this state, or any person in this state from enforcing any statute, ordinance, rule, regulation, or any other type of law that regulates or restricts abortion or that limits taxpayer funding for individuals or entities that perform or promote abortions, in any state or federal court, or that represents any litigant seeking such relief in any state or federal court, is jointly and severally liable to pay the costs and attorney’s fees of the prevailing party.
Lawyers who challenge S.B. 8 or any other Texas abortion law, or represent someone who does, can be held responsible for the other side’s legal fees — a strong disincentive to accept such cases.
This applies if defendants lose on any claim, even if they win overall. If someone challenges a law on five grounds, and the courts agree on four and strike the law down, the defendant’s lawyers can still be liable for the plaintiff’s legal fees because the court rejected the fifth.
The bill tries to dictate what judges can do.
Section 171.209 (Pages 9-11): A defendant against whom an action is brought under Section 171.208 does not have standing to assert the rights of women seeking an abortion as a defense to liability under that section unless the United States Supreme Court holds that the courts of this state must confer standing on that defendant to assert the third-party rights of women seeking an abortion in state court as a matter of federal constitutional law; or the defendant has standing to assert the rights of women seeking an abortion under the tests for third-party standing established by the United States Supreme Court. A defendant … may assert an affirmative defense to liability under this section if the defendant has standing to assert the third-party rights of a woman or group of women seeking an abortion … and the defendant demonstrates that the relief sought by the claimant will impose an undue burden on that woman or that group of women seeking an abortion. A court may not find an undue burden … unless the defendant introduces evidence proving that an award of relief will prevent a woman or a group of women from obtaining an abortion; or an award of relief will place a substantial obstacle in the path of a woman or a group of women who are seeking an abortion. A defendant may not establish an undue burden … by merely demonstrating that an award of relief will prevent women from obtaining support or assistance, financial or otherwise, from others in their effort to obtain an abortion; or arguing or attempting to demonstrate that an award of relief against other defendants or other potential defendants will impose an undue burden on women seeking an abortion. The affirmative defense … is not available if the United States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833 (1992), regardless of whether the conduct on which the cause of action is based … occurred before the Supreme Court overruled either of those decisions.
Building methodically on the legal insulation created through S.B. 8’s enforcement mechanism, these sections seek to prevent people sued under the law from challenging its constitutionality — and, if the courts do let them challenge it, to dictate how those courts interpret Supreme Court precedent.
The “undue burden” language is significant because that is the standard by which federal courts evaluate abortion restrictions under Planned Parenthood v. Casey, the 1992 ruling that affirmed Roe v. Wade. According to Casey, a restriction is impermissible “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
Texas legislators are trying to set the terms of interpreting this standard, declaring that judges may not find an undue burden unless defendants prove specific facts.
The law also tries to limit who can sue by asserting that only the Supreme Court can grant standing to people whom Texas believes lack it. And it says that if the Supreme Court overturns Roe or Casey, people sued under S.B. 8 may no longer defend themselves based on abortion rights principles, even if they are sued in connection with an abortion performed while Roe and Casey were in effect.
If part of the law falls, the rest stands.
Section 171.212 (Pages 12-14): All constitutionally valid applications of this chapter shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force … Even if a reviewing court finds a provision of this chapter to impose an undue burden in a large or substantial fraction of relevant cases, the applications that do not present an undue burden shall be severed … If any court declares or finds a provision of this chapter facially unconstitutional, when discrete applications of that provision can be enforced against a person, group of persons, or circumstances without violating the United States Constitution and Texas Constitution, those applications shall be severed … If any provision of this chapter is found by any court to be unconstitutionally vague, then the applications of that provision that do not present constitutional vagueness problems shall be severed and remain in force. No court may decline to enforce the severability requirements of Subsections (a), (b), (b-1), (c), and (d) on the ground that severance would rewrite the statute or involve the court in legislative or lawmaking activity.
Severability is a common principle that protects the remainder of a law if parts are found unconstitutional or unenforceable. But S.B. 8 goes into uncommon detail, taking nearly 600 words to lay out ways in which parts of the law could be found unconstitutional and emphasizing severability with respect to each one.
S.B. 8’s severability section “is unusually long and argumentative,” Professor Ziegler said, and is meant to ensure that courts treat any allowable provision as severable “even if the law as a whole would not seem to make sense without the excised provision.”
This speaks to how carefully Texas worked to craft a bill that could withstand legal challenges even if opponents find a successful way to bring lawsuits.
“It’s really unorthodox,” Professor Murray said. “But everything about this statute is unorthodox.”
(c) 2021 The New York Times
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