AUSTIN (Nexstar) — As the U.S. Department of Justice prepares to take the new Texas abortion ban to court, the future of the law is uncertain.
So far, Texas lawmakers have successfully maneuvered around the precedent established by Roe v. Wade in 1973, which found women have the right to an abortion before fetal viability. This is because the law is enforceable by citizens, not the state, and those who break the law are subject to civil penalties, not criminal.
SB 8 is written so that all abortions are banned once a fetal heartbeat is detected, which can be as early as six weeks. Anyone who aids or abets in an abortion after a physician detects a fetal heartbeat could be subject to a civil lawsuit.
Richard Rosen, a law professor at Texas Tech University, said the authors of the legislation were “very clever” since they found a way to temporarily work around the precedent under Roe v Wade.
“I don’t know that this particular type of law has ever been used,” Rosen said. “I believe the authors of the laws used a citizen enforcement as means of precluding preemptive attacks on the laws, because there’s no one in the state that can enforce it. No state official or state officer.”
Even the legislation’s proponents, like Lt. Gov. Dan Patrick, acknowledge that they wrote it intently to usurp Roe v. Wade, with the goal of ultimately banning abortion altogether. If the United States Supreme Court were to overturn Roe v. Wade, Texas has a trigger law that would automatically ban abortions altogether.
“We wrote a unique bill, a very novel bill, some would say, every other heartbeat bill passed in the country has either failed in court or just not gotten to become law,” Patrick said. “… anecdotally we hear that around the state, doctors have quit performing abortions, because they’re afraid they’re going to be sued.”
Although groups like Texas Right to Life have set up anonymous tip lines for anyone to leave information about violates of SB 8, there have not been any civil lawsuits against abortion providers since the law went into effect on Sept 1.
In addition to Rosen, Nexstar spoke with another law professor — Josh Blackman of South Texas College of Law Houston — to answer questions about how such lawsuits could potentially play out.
Q: Who can be classified as an “aider” or “abetter” in an abortion?
Rosen: “They conduct an aiding or abetting the performance of an abortion if the abortion is performed or induced in violation of the statute, which is after the fetal heartbeat, regardless of whether the person knew…if they had no idea that this was an abortion after for example, maybe it happened in the eighth week, they could be deemed an aider and abettor, but they have to knowingly aid or abet.”
Q: Could a taxi, uber or any other driver get sued for taking a woman to get an abortion?
Blackman: “I think it’s very hard to post liability on [an] Uber driver, I know this was a common example. You have to have some knowledge what you’re doing. [If] you simply just pick up a fare, dropped them off on the street near clinic, you have no idea what they’re going to do. They can get any physical exam, for example.”
Rosen: if I were the Uber driver, I would never ask anyone if they’re being driven to Planned Parenthood.
Q: How could a private citizen know with certainty the details of what happened between a woman and her abortion provider?
Blackman: “The issues of proof become very tricky. I don’t know how this law actually operates in reality, right? How do you know which abortions are being performed? These records are not public. And even if you file a lawsuit, you don’t get access to the documents so much later in the case, you have to have something to go on.”
Q: Why does this not violate Roe v. Wade?
Rosen: “The state has no role in its enforcement, only private citizens. And it generally acts as a deterrent…It’s just a clever way to get around Roe temporarily.”
Q: What will happen if a provider does give an abortion after a fetal heartbeat is detected?
Blackman: “I’m actually surprised that there hasn’t been a clinic somewhere that says, ‘you know what, come on and sue me. Come and take it and sue me.’ And they just performed an abortion [and] wait to get sued. Very wealthy people could pay the $10,000 penalty. I’m surprised it hasn’t happened yet. There must be some strategic decision from Planned Parenthood why they haven’t, but I would have expected someone to defy this law.”
Rosen: “Ultimately, given the current state of the law with respect to abortion, it should be deemed unconstitutional…a state cannot ban abortions before viability of the fetus or unborn child, which is anywhere from 20 to 24 weeks, this is way before that. So ultimately these laws should fail but someone has to be brave enough to actually do an abortion so they can get sued. And then they can challenge it.”