After the Supreme Court failed to issue an injunction this week, the most restrictive abortion law in 48 years went fully into effect in Texas. I’ve seen a lot of incorrect information on this law and prominent people misunderstanding how the law works. Nothing I write here should be construed as endorsing any part of this law. In fact, I think this may be the worst written law I’ve seen in my lifetime, both from a legal standpoint and from its practical effects. That contributes to why it is so astounding that the Supreme Court failed to act. I’m going to be adding a lot of exceptions to answers because there’s a huge gulf between what the law TECHNICALLY does and its actual aim – ending abortion in the state via the threat of legalized harassment.
I’ll only be using two sources here: the text of the law itself and the Supreme Court order explaining why they did not issue an injunction.
What does the law, SB8, actually DO?
Physicians in Texas are now prohibited from performing an abortion in any situation with a detectable fetal heartbeat. Instead of being enforced by the state, which would have immediately been blocked by the courts, the law is enforced by ANYONE else. Additionally, the same civil liability physicians face is extended to anyone aiding such an abortion. That would include someone counseling someone on how to get one, as I’m going to do later here, driving someone to get one, etc… It’s incredibly broad which was the point.
Is abortion illegal in Texas? Are abortions still available in Texas?
In a criminal sense, abortions are not “illegal” in Texas. Abortions before a detectable heartbeat, roughly six weeks, are still available, but this is most often before a woman is aware she’s pregnant. Abortions after six weeks are not a criminal action, but it is now incredibly difficult to find a doctor who will perform one as they risk multiple civil lawsuits.
Who can file a lawsuit under this law?
ANYONE. You do not have to live in Texas. You do not have to know the person who had the abortion. Anyone at all may file a suit. The insane breadth here is the point. If you provide an abortion, Texas wants you facing the possibility of hundreds of lawsuits.
If anyone can file a suit, can a rapist sue the woman he raped?
No, but that doesn’t matter. The law explicitly forbids a rapist from suing the woman he raped. But you know who could file such a suit? Everyone he has ever met. So it’s not technically true that a rapist could sue their own victim, but that really doesn’t matter here. The goal isn’t lawsuits, it’s the threat of them.
Can a woman be sued for having an abortion under this law?
No. Abortion is a right recognized by the supreme court. If the state had gone this far, it would have been far more likely the courts would have issued an injunction. The state actually argues in the law that women have a right to have a abortion but that right doesn’t mean doctors have to be allowed to perform them.
Why can other people sue over this? Doesn’t the state normally enforce such restrictions?
Why yes, they WOULD normally enforce such restrictions. And in the case of abortion, the courts have ruled time and time again in DECADES of cases, that the states CANNOT enforce such restrictions. So instead of the state enforcing an abortion restriction, the Texas legislature decided to see what would happen if it were up to private citizens to enforce restrictions. If that sounds insane to you, it is. It also worked – for now. (more on that later)
So people can now report someone providing an abortion to the state?
No. It doesn’t work that way. In fact, the state went to great lengths to make sure they’re not involved in enforcement of this law in any way – as that would be blocked by the courts. If anyone, and I do mean anyone, suspects a doctor of providing an abortion or another person aiding one in ANY way, they file a civil lawsuit against that person to collect damages.
But I saw a website where you could report people. Won’t flooding it with false reports stop this somehow?
A right to life group was soliciting information about people violating this new law. They’re a private organization and not affiliated with the state. In theory, such a group could collect reports from the public then file lawsuits based on those reports. Given that this group was taking tips from the public before the law was even in effect, I seriously doubt they had any plans to do anything at all with the information they were gathering. The people flooding them with fake reports likely aren’t even causing them any sort of hassle aside from website instability. This action may make people feel better, but it’s not going to have any actual effect on things.
But the state is paying bounties, right?
I wish journalists would stop using the word bounty here. The state isn’t paying anything at all. The law sets up a private civil action. If you successfully sue a doctor, the doctor is the one paying you.
Couldn’t we file dozens of bogus lawsuits against lawmakers/Republicans/etc…?
Sure. Now what? Let’s say you and 200 of your friends file a fake lawsuit against your least favorite Texas congressman. Do you have 200 lawyers willing to take up these fraudulent suits? In order for this to happen you’ll need a large number of attorneys filing cases they know for certain are completely fraudulent. This is simply not a legally viable option.
But won’t the other side be using a similar tactic?
They’re using the THREAT of this tactic. The goal of this law isn’t to generate an absurd number of lawsuits against abortion providers. The goal is to threaten them with an absurd number of lawsuits so that they stop providing abortions past six weeks. The law was immediately successful in this goal with every abortion clinic in the state halting abortions past the six week mark. They don’t actually need to file the lawsuits.
What did the Supreme Court do / not do? How to they normally react to such laws?
Conservatives realized decades ago they were unlikely to overturn Roe. They instead have been using tactics of adding burdensome and useless restrictions under the guise of “protecting women” to limit abortion providers. They have had a degree of success with this tactic as the number of providers in several states has plummeted. However, outright bans like what Texas pass have always been nearly immediately stopped by the courts. This is where the civil enforcement comes in. The state is arguing that since the STATE isn’t enforcing the law, the courts didn’t have anyone to enjoin from acting.
For an analogy, say a state said it was now illegal to go to church, any of them. But instead of arresting people who go to church, anyone can sue someone who goes to church and get a judgement. If that state argued “Well golly, WE aren’t keeping people from going to church! It’s private citizens pursuing a civil action keeping people from going to church!” If this made it to the Supreme Court, they would block such a law from being enforced immediately. They didn’t here.
They issued an order the day after the law took effect. (Orders are not the same thing as decisions. The court hasn’t actually ruled on the merits of this case). The minority, consisting of Sotomayor, Kagan, Breyer, and Roberts made the argument that the Texas law was explicitly designed to exploit a technicality to prevent the Supreme Court from blocking the law and that technicality should be ignored. The majority AGREED that this law was exploiting a technicality to prevent the court from acting – and the proceeded to concede that they could not act and that Texas’s trick worked. This absolutely would not have happened under the church scenario outlined above.
What happens now? Will the court ultimately overturn this law? Will it be in affect until then?
I cannot stress enough how badly this law was written. In seeking to prevent something the courts have recognized as a right for DECADES, the state has simply said it isn’t the government restricting something if private individuals can sue using the court system to stop it. By this logic a state could ban all handguns if they said that private citizens have the authority to take your gun from you and turn it in. It’s ludicrous and why I don’t think the Supreme Court is ultimately going to allow this law to stand. (I in no way mean to invalidate the feelings of anyone scared that won’t be the case)
Which is why the order they issued is equally ludicrous. Even if this law gets tossed by the court, it’s in effect NOW and could be for years. Without diving into the technicalities of the legal issues, there’s still a chance the Supreme Court could issue an injunction after lawsuits are actually filed. That COULD result in the entire law basically being placed on hold, but I’m not comfortable making a prediction there.
How do we fight this?
That’s the easiest part. You vote for Democrats and only Democrats – up and down the ballot, in every election from now until the sun engulfs the planet. Yes, their lack of urgency on this and other issues is alarming. But every possible solution here involves Democrats holding office. If you happen to be represented by Democrats, CALL THEM and call them OFTEN. Pressure them to end the filibuster if they’re a Senator. Pressure them to pass laws protecting the right to an abortion if they’re in the House. If you’re represented by a Republican, they will absolutely not give a shit. Work on voting them out.
What can we do in the meantime?
Donate to the ACLU, Planned Parenthood, and other abortion rights groups. They’re going to be heavily involved in the fight here.
Men – vasectomies are typically covered by ACA compliant health insurance plans.
Women – The National Women’s Health Network has been helping women get prescriptions for Misoprostol and Mifepristone for years now. They can help connect you to a doctor who will offer a prescription. These two medicines are safe, FDA approved and work in the first trimester of pregnancy. It’s also perfectly legal still for you to acquire these pills and use them in the first six weeks of a pregnancy in Texan. But they’ll work through 11 weeks. *wink wink* The website: https://www.plancpills.org/
The nearest abortion provider past six weeks now for DFW residents is in Oklahoma City. For Houston residents I believe the closest is Shreveport, LA, but don’t quote me on that. I’m sure as we get further into this there will be organizations assisting with transportation out of state. (Which this new law can’t do anything about)
Plan B is different and despite right wing claims, Plan B does NOT induce an abortion. It’s emergency contraception which will prevent you from becoming pregnant, but needs to be taken very soon after sex. It’s still completely legal in Texas.
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