Texas’ Latest Abortion Laws | Will Senate Bill 8 Win or Wither?

Texas’ Latest Abortion Laws | Will Senate Bill 8 Win or Wither?

America’s battle with abortion has been endless and divisive with various states now passing new bills which drastically restrict access to abortion. The state of Texas rolled out Senate Bill 8 on the 1st of September:

The new bill states that, “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a foetal heartbeat for the unborn child as required by Section 171.203 or failed to perform a test to detect a foetal heartbeat.”  

Senate Bill 8, Section 171.205

The History of Abortion Legislation in the State of Texas:

Texas has been taking steps to overcome Wade vs Roe legislation since it came into effect in 1973.

This Supreme Court judgement made abortion a constitutional right in America after a class action lawsuit was filed by “Jane Roe”, a pregnant citizen of the state of Texas, against Henry Wade, the District Attorney of Dallas County.

While Roe’s case would initially be heard by the US District court for North Texas, who ruled in her favour, it would subsequently be appealed and taken to the Supreme Court. They too would vote against Wade in a 7-2 majority, which would lead to abortions becoming a (largely) legal procedure nationwide.

The legislation would declare that:

“State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violates the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy”. 

The Library of Congress. 2021. U.S. Reports: Roe v. Wade, 410 U.S. 113 (1973)

However, the State of Texas were able to find several loophiles within this piece of legislation and have, throughout the last few decades, managed to apply laws which limit an individuals ability to access abortion:

  • 1977: Declared that practitioners were able to choose whether they wished to perform abortions.
  • 1987: Third trimester abortions are banned.
  • 2000: Parental notification for minors considering abortion is mandated.

More recently, in 2017, a bill involving six other states was proposed which would have banned dilation and evacuation abortions, which are commonly used within a woman’s second trimester. However, this would not come to pass.

Despite the recent worldwide shock, the introduction of Senate Bill 8, is not a surprising development in Texas’ attempt to limit the use of abortion procedures.

Senate Bill 8 and its Implications:

Aiding Abortions & Legal Fees:

As a result of Roe v Wade the state of Texas is prohibited from criminalising abortion, however, the way in which Senate Bill 8 has been conceived means it lands in the hands of civilians to take action against those who aid women in having an abortion.

“authorise 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 in violation of this subchapter;”

Senate Bill 8, Section 171.206

This means that civilians are able to sue those who aid women receiving abortions, although not the women themselves. This would include practitioners, abortion services, friends, family, or anyone else who helped or knew of the abortion, as knowing and not filing a lawsuit would be considered as aid.  

“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;”

Senate Bill 8, Section 171.208

The Senate Bill 8 only allows for medical abortions if a heartbeat cannot be detected. Cardiac activity usually starts around 6 weeks into a pregnancy, which will often leave women with just a few weeks, after a missed period, to arrange an abortion.

The law around whether an abortion is legal or not is determined by physicians, therefore if a physician rules an abortion can be performed and it turns out there is cardiac activity, his or her fellow colleagues, friends, family or any people or persons can sue them for this judgement.

The law states that such a mistake is not a defence for the abortion (Section 171.208) and it also allows for the accuser to be awarded upwards of $10,000 and all legal fees paid for (Section 171.208). This would be paid by the defendant, however if the defendant wins, their fees are not reimbursed and there is no cash reward.

On the 20th of September the first private led lawsuit against Texas doctor Allen Braid was filed.   

“The lawsuits would be against the individuals making money off of the abortion, the abortion industry itself. So, this is not spy on your neighbour and see if they’re having an abortion”

John Seago with Texas Right to Life

While this may initially appear to be standard legal procedure, in which within any typical civil case the defendant (if they win) is either paid or can sue for damages, abortion cases under Senate Bill 8 are markedly different.

The legislation states that the court must issue “injunctive relief sufficient to prevent the defendant” from breaking the law again, this could mean government forced closure of abortion services. Many abortion services are already closing or reducing in size over fears of civil actions against them which could lead to bankruptcy. It seems to be a lose, lose situation for the defendant in any outcome.

Medical Emergencies:

Medical emergencies are the only exemption from SB 8 (Section 171.205), rape or incest is not an acceptable reason for abortion, however, a rapist is not allowed to take civil action against the victim. This creates a grey area due to the lack of rape convictions and the time that it takes for a rape trial to be concluded verses the six-week window a woman has to abort.

The practical implications of this mean that a woman in Texas could be raped, become pregnant, realise that she is pregnant after the six-week window, abort outside the law, lose her rape case and then the rapist could sue whomever aided her in having an abortion, winning $10,000.

In response to this, Greg Abbott, The Governor of Texas would state that:

“We are working tirelessly to make sure that we eliminate all rapists from the streets of Texas”

Greg Abbott, Governor of Texas

Despite Abbotts reassurance, statistics from a statewide sexual assault prevalence study (The University of Texas, 2015), has shown that only 9.2% of rapes in the state of Texas were reported and that 10% of these rapes resulted in pregnancy.

Leaving The State of Texas & Sovereign Immunity:

It is important to note that the law is also upheld outside of the state, so an individual from Washington could take civil action against an individual from Wisconsin who aided a Texas woman with their abortion. However, they must file this action in within the state of Texas. (Section 171.210.)

In addition, although State officials and employees are not allowed to take action (Section 171.207) they are able to use amicus curiae (A non-party with an interest in the outcome of a pending lawsuit who argues or presents information in support of or against one of the parties to the lawsuit) which allows them to influence a trial from a distance (Section 171.208).

This is a full-scale assault on abortionaccess. With S.B. 8 now in effect, politicians, neighbours, and even complete strangers can sue anyone who helps a person access an abortion in Texas after six weeks. Patients’ loved ones, doctors, and others who help them access care are now at risk of getting dragged into court.”

Planned Parenthood

Sovereign immunity is common practice within US international trade. It is also common practice for States including Texas to exercise sovereign immunity in reference to individual smaller cases e.g Texas Dept. Parks and Wildlife v. Miranda and Texas Natural Resource Conserv. v. IT-Davy. However it has not previously been applied to key areas of public health and wellbeing.

An Infraction of Human & Constitutional Rights?

Lawyers are also discouraged from aiding defendants, any lawyer representing a defendant is liable to pay the accuser’s legal fees if they win the case. 

“Or that represents any litigant seeking such relief in any state or federal court, is jointly and severally liable to pay the costs and attorny’s fees of the prevailing party”

Senate Bill 8, Section 30.022

This will put defendants at a disadvantage due to presumed lawyer scarcity and fears of driving legal costs up. This has the potential to leave many defendants with no recourse to legal support at all.

S.B. 8 deviates from the US constitution and violates a number of international rights and laws, in which Article 8 of the Equality and Human Rights Act, states that one should recieve: “Respect for your private and family life, home and correspondaence”. This covers things like your right to determine your sexual orientation, your lifestyle, and the way you look and dress. It also includes your right to control who sees and touches your body.

“We notified the US adminstration that the imposition of new barriers to access to abortion services constitutes discrimination under international law, yet the retrogression has continued”

Melissa Upreti, The Chair of the UN’s Working Group on Discrimination Against Women and Girls

The state of Texas has not yet put in place any provision for the additional child and welfare support as a result of rising birth rates due to SB 8. In addition, a high volume of young liberal Californians are currently migrating to Texas due to Californian inflation. This could cause a major political shift to the historically republican state and reduce political support for SB 8. The long-term sustainability of such strict abortion laws may therefore be called into question. Ultimately leading to the bill being repealed.

Despite this, there is the potential for this type of legislation to spread. If the Dobbs v. Jackson supreme court case comes out with a win for Dobbs, (banning abortions after the first 15 weeks) Wade vs Roe could be reviewed and the US constitutional laws on abortion could change dramatically. With the potential for other conservative states such as Florida, to take on laws similar to SB 8.

Written & Illustrated by Chantelle Weir

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