Texas Abortion Ban Goes Into Effect, Sparking Lawsuits

By Terrance Turner

September 1, 2021 (updated Oct. 6)

After the Supreme Court failed to act, a restrictive Texas abortion law has gone into effect. The law forbids abortion after six weeks of pregnancy, before expectant mothers are even aware of the pregnancy. It makes no exceptions for rape or incest. (Supposedly, six weeks is when a “fetal heartbeat” is detected, but doctors say that term is misleading.) The bill became law at midnight, after the Supreme Court did not act on a request to block it.

“The law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in Texas,” the New York Times says. Abortion providers contend that SB8 will prevent at least 85 percent of Texas abortion patients from obtaining procedures. They further argue that it will cause many abortion clinics to close.

Worse yet, the law allows private citizens — individuals who may have no connection to the patient — to report them. Under the new law, any individual can sue anyone they suspect has performed, or assisted with an abortion. The law states that any person can bring civil action against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs,” SB 8 says.

“The patient may not be sued, but doctors, staff members at clinics, counselors, people who help pay for the procedure, even an Uber driver taking a patient to an abortion clinic are all potential defendants,” the Times adds. Plaintiffs, who need not have any connection to the matter, can get $10,000 and their legal fees recovered if they win. Prevailing defendants are not entitled to legal fees.

The Texas Tribune posits that this provision could allow SB 8 to skirt Roe v. Wade, the 1973 Supreme Court decision that legalized abortion. Austin NPR station KUT 90.5 agrees, stating that “Texas’ law has so far evaded a court block because it was written to be enforced by private citizens with the help of anti-abortion groups.”

Social worker Monica Faulkner told KUT that what angered her most about the bill was that lawmakers did not include any carve out for people who are raped. “They did specify that a rapist could not sue his victim,” Faulkner said. “However, there is nothing else in there that allows for protections for sexual assault survivors. So, clearly the people who wrote this legislation thought about sexual assault survivors and they chose to ignore the rights of those survivors.”

The law has drawn widespread opprobrium online and sharp criticism from the White House:

Some conservatives are praising the decision as a victory for the pro-life movement, lauding the state and its governor for protecting the lives of the unborn:

Unfortunately, Texas lawmakers have not been as successful at protecting the lives of school-age children. The Texas Tribune notes that 783 children were admitted to Texas hospitals with COVID-19 between July 1 and Aug. 9 of this year. Yesterday, the Fort-Worth Star Telegram reported that an 11-year-old girl is now on a ventilator in Texas Children’s Hospital in Houston. Her mother contends that her daughter, Brennah Gurganious, caught the virus at Buna Junior High in Buna, near Jasper, TX.

There are 82 students and 14 staff members who currently have COVID in the three schools that make up the Buna Independent School District. The cases represent 5.4% of students and 4.9% of staff members.

“I am so distraught over this,” Terri Gurganious wrote on Facebook, posting a picture of her daughter on the ventilator. “If we kept our kids home and [were] not sending exposed kids or faculty to school this wouldn’t have happened.” (The school is not requiring masks and has not made virtual learning available except for COVID-positive students.)

The Tribune reported last week that more than 14,000 children in the state of Texas have tested positive. “Between Aug. 16 and Aug. 22, there were 14,033 positive cases reported among students across the state, 34% more than the week with the most student cases reported last school year,” the Tribune wrote, citing Texas Department of State Health Services data. Some Twitter users have noted the dichotomy:

UPDATE (Sept. 3, 2021): Texas abortion providers won a temporary restraining order against Texas Right to Life and its associates Friday, blocking them from suing providers and health care workers at Planned Parenthood health centers in the state under a new law.

Planned Parenthood sued the anti-abortion group in state court to stop the group from enforcing Texas’ new six-week abortion ban. The nonprofit organization provides what its site calls “safe and compassionate abortion services.” It also provides mammograms, LEEP cervical cancer screenings, and HIV prevention, testing, and treatment.

Planned Parenthood was granted its request today. Texas’ six-week law creates a “probable, irreparable, and imminent injury” for Planned Parenthood, its physicians, staff, and patients in Texas, Judge Maya Guerra Gamble (of the Texas District Court for Travis County) wrote in the temporary restraining order. “Plaintiffs, their physicians, and patients throughout Texas have no adequate remedy at law if Plaintiffs, their physicians, and staff are subjected to private enforcement lawsuits against them under S.B. 8. Money damages are insufficient to undo the injury to Plaintiffs, their physicians, and staff if the Defendants are not enjoined from instituting private enforcement lawsuits,” the judge wrote.

Additionally, the CEOs of Lyft and Uber pledged to cover the legal fees of drivers who get sued as a result of the new law. The ride-share companies have moved to create a legal defense fund in order to cover those fees. Both criticized the law for punishing drivers for “getting people where they need to go”.

UPDATE (Sept. 7, 2021): Today, Gov. Abbott was in Tyler, TX, to sign into law the controversial voting restrictions bill passed last month. At a press conference today, WFAA reporter Alex Rozier pointedly asked Gov. Abbott: “Why force a rape or incest victim to carry a pregnancy to term?”

“It doesn’t require that at all, because it obviously provides at least six weeks for a person to be able to get an abortion,” Abbott answered. “That said, however, let’s make something very clear: Rape is a crime. And Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets.”

He continued: “Goal No. 1 in the state of Texas is to eliminate rape, so that no woman — no person — will be a victim of rape.”

Abbott’s comments drew online comparisons to the 2002 film “Minority Report”, in which a special unit of the police department uses psychic powers to arrest murderers before they can commit the crime. Many Twitter users pointed out that the technology that would be required to achieve Abbott’s objective does not exist in real life:

BREAKING (Sept. 9, 2021): The Justice Department is suing the state of Texas over its abortion law. The lawsuit, filed in United States District Court for the Western District of Texas, names plaintiff and defendant: the United States of America vs. the State of Texas.

“It is settled constitutional law that ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” the suit’s preliminary statement begins. “But Texas has done just that. It has enacted a statue barring nearly all abortions in the state after 6 weeks months, before a pregnancy is viable.”

“Texas enacted S.B. 8 in open defiance of the Constitution. The statute prohibits many pre-viability abortions, even in cases of rape, sexual abuse, or incest. It also prohibits any effort to aid — indeed any intent to aid — the doctors who provide pre-viability abortions or the women who exercise their right to seek one. Because S.B. 8 clearly violates the Constitution, Texas adopted and unprecedented scheme,” the statement says, “by making the statue harder to challenge in court. Instead of relying on the State’s executive branch to enforce the law, as is the norm in Texas and elsewhere, the State has deputized ordinary citizens to service bounty hunters who are statutorily authorized to recover at least $10,000 per claim from individuals who facilitate a woman’s exercise of her constitutional rights.”

“The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights,” the suit says. “The federal government therefore brings the student directly against the state of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the right that Texas has violated.”

BREAKING (Oct. 6, 2021): A federal judge has blocked the enforcement of S.B. 8. In a 113-page decision, Judge Robert Pitman issued a preliminary injunction today, ruling on a lawsuit brought by the Justice Department.

A person’s right under the Constitution to choose to obtain an abortion prior to fetal
viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.

The State created a private cause of action by which individuals with no personal interest in, or connection to, a person seeking an abortion would be incentivized to use the state’s judicial system, judges, and court officials to interfere with the right to an abortion. Rather than subjecting its law to judicial review under the Constitution, the State deliberately circumvented
the traditional process. It drafted the law with the intent to preclude review,” Pitman declared.

After a primer on conception and embryonic development, Pitman outlines the reasons that patients seek an abortion, financial, medical or otherwise. He rightly points out that some may terminate pregnancies due to rape, incest or “intimate partner violence” and cites real-life examples of those situations. (One case involves a young woman who was abused by a family member.) Pitman goes on to describe the many regulatory barriers to abortion that already exist and the means by which Texas lawmakers sought to create larger ones.

Pitman notes that the Department of Defense, the Department of Health and Human Services, and the Department of Labor would all be constrained by the law, which would prohibit them from statutorial or contractual obligations. He concludes: “From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution,” Pitman wrote. “That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.”

The State of Texas has filed to appeal the ruling.

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