BONUS. Abortion Bounties? Inside the Fight Against Radical Texas Law SB 8
A new Texas law would ban abortion around six weeks by encouraging vigilante lawsuits against abortion providers, funders, and others, with a strong incentive — at least $10,000 in damages. The fight to stop it from going into effect will likely end up at the Supreme Court.
Guest: Julia Kaye, staff attorney with the ACLU Reproductive Freedom Project
Logo by Kate Ryan, theme music by Lily Sloane. Photo by Robin Marty.
EPISODE TRANSCRIPT
[intro music]
Garnet Henderson [00:00:32] Welcome to ACCESS, a podcast about abortion. I'm your host, Garnet Henderson. Last week we learned about the unprecedented number of state level attacks on abortion access in 2021. We heard about one particularly radical law in Texas called SB 8. If allowed to go into effect, SB 8 would ban abortion once fetal cardiac activity can be detected. Thanks to the very advanced technology we now have, this is usually possible around six weeks of pregnancy, though it can happen as early as five weeks. And rather than tasking the state with enforcement. SB 8 deputizes private citizens to do it by suing people who provide or assist someone in getting an abortion in civil court, according to the Texas Policy Evaluation Project, only about 16% of abortion patients in Texas are less than six weeks along on the day of their abortion. And that's because few people realize they're pregnant before six weeks. And even if they do remember, it's really hard to get an abortion in Texas. Already there are just over 20 abortion clinics in the state. Not many. For a big state with large rural areas. Plus, getting an abortion in Texas requires at least two visits to a clinic at least 24 hours apart. And the same doctor who performs your abortion procedure or gives you your abortion pills has to give you your ultrasound at that first visit. So getting to a clinic that may be far away on two days where the same doctor is there is already difficult. And these barriers push people later and later into pregnancy, regardless of how far along they are when they first try to schedule their abortion. I also want to remind you that many people don't discover they're pregnant until way later than six weeks. Later discovery of pregnancy is quite common, so if you want to learn more about that, I suggest going back to episode four, which was all about later abortion. SB 8 is law. Texas Governor Greg Abbott has signed the bill, but it's not set to go into effect until September 1st. Several other states have passed six week abortion bans, but all of them have been blocked in the courts. Anti-abortion lawmakers are hoping that SB 8's unusual civil enforcement mechanism might make it harder to challenge. But abortion rights advocates are confident that they can fight it and win. Last week, a coalition of abortion providers led by Whole Woman's Health plus abortion funds, doctors, medical staff, practical support networks and clergy members filed a challenge to SB 8 in federal court. They're represented by a legal team, including the Center for Reproductive Rights, the ACLU, the Lawyering Project and Planned Parenthood. So to learn more about SBA and what this legal fight will look like, I spoke with one of the attorneys on the team.
Julia Kaye [00:03:54] I'm Julia Kaye. I'm a staff attorney with the ACLU Reproductive Freedom Project, where I litigate challenges to federal and state level restrictions on abortion access.
Garnet Henderson [00:04:05] I asked Julia to explain to us a little bit more about SB 8 and what this law would actually do if it were to go into effect.
Julia Kaye [00:04:13] So Texas Senate Bill 8, SB 8, prohibits abortions beginning at approximately six weeks of pregnancy, which is before many people even realize they're pregnant. So in one sense, SB 8 is more of the same. In recent years, more than a dozen states have tried to ban abortion in defiance of Roe v Wade, and all were quickly blocked by federal courts. Those cases were straightforward because the Supreme Court has reiterated for half a century that the US Constitution protects the right to abortion. But what makes SB 8 radically different is that every other state that tried to ban abortion charged government officials with enforcing the penalties for their abortion bans, and then federal courts barred those government officials from enforcing the unconstitutional laws before they ever took effect. But with SB 8, the Texas legislature has taken a different tack. This law authorizes any person that's direct quote, any person other than the government to sue someone who provides an abortion after six weeks, helps someone obtain an abortion after six weeks or, quote, intends to do these things. What this means in practice is that any anti-abortion activist, ex-boyfriend, distant relative or random stranger can sue. And the goal here, of course, is to incentivize a flood of these vigilante lawsuits. So to encourage that, the Texas legislature offered up a bounty of at least $10,000 per violation payable by the abortion provider or a sister who sued to the person who sued them. If the lawsuit is successful so the law does not authorize lawsuits against abortion patients themselves. But the fact that SB 8 authorizes these lawsuits based on an intent to obtain an abortion after six weeks likely means that people can bring these lawsuits to try to veto someone's abortion decision. So I overhear you saying that you are planning to have an abortion at X, Y and Z clinic, and I believe that you are past six weeks pregnant. I can rush into court to try to quickly get an injunction blocking that abortion provider from performing the abortion that you've scheduled. It is really horrifying.
Garnet Henderson [00:06:59] So say I'm your neighbor. And I overheard you talking about having had an abortion. I can sue the clinic that provided the abortion or your partner who drove you there just because I suspect that you had that abortion after six weeks. Maybe I'm wrong, but the clinic and your partner still have to defend themselves against my suit.
Julia Kaye [00:07:22] Even if abortion providers and supporters are able to successfully defend themselves in these lawsuits. It is hugely costly and burdensome to be a defendant in litigation under any circumstances, and SB 8 exacerbates that by changing the courthouse rules to make these lawsuits as harassing and abusive as possible. So, for instance, SB 8 allows lawsuits to be brought in any of Texas 254 counties, and it bars the courts from transferring the case to a more appropriate location. So, for instance, a physician who provides abortions in El Paso might have to fly across the state to Houston to defend themselves in one of these vigilante lawsuits. And another example is that if the vigilante prevails, they get their costs and attorney's fees covered. But if the abortion provider or supporters successfully defend themselves, they still have to swallow all of their litigation costs. So just being sued is profoundly harmful, even if you ultimately win. And to isolate abortion patients who might fear that if they go to a loved one or a counselor or a religious advisor for support and guidance in accessing care, that that person might be hauled into court to defend themselves in an SB 8 enforcement lawsuit. So you can imagine the fear that abortion patients will have of implicating any of their community members in this in this scheme. Certainly, there is a serious concern that some random anti-abortion activist, someone somewhere in the country will file the lawsuit. Whether or not it's successful, it will still be hugely harmful to the person sued and therefore have a chilling effect and just make people disassociate themselves from abortion so as to avoid any of these lawsuits.
Garnet Henderson [00:09:35] So how exactly do you sue? Who do you sue to block a law like this?
Julia Kaye [00:09:41] Well, our defendants in this case are the people who the Texas legislature has conscripted it to enforce SB 8. So in that sense, it is the same as all of the other lawsuits that have successfully struck down abortion bans. But in this case, instead of suing the prosecutors or the attorney general in the first instance here, we have sued state court judges and courthouse clerks who would be the ones to open these enforcement lawsuits authorized by SB 8 and then impose the laws penalties. So in this case, the enforcers are the state court judges and courthouse clerks. And then I should add that in addition, we've also sued one anti-abortion activists in Texas who is already recruiting for vigilante lawsuits under SB 8. And we have also sued a number of other state officials, including the Texas Medical Board, including the attorney general, who do not have any direct enforcement authority under SB 8, but do have the authority to enforce other laws that could potentially be triggered by a violation of SB 8. So just to spell that out a little more. One illustration is the Texas Medical Board, which has no direct enforcement authority under SB 8, but it does have authority to discipline a doctor for violating any state law connected with the practice of medicine.
Garnet Henderson [00:11:15] Some people are worried that this law will be hard to challenge, in part because of a similar battle playing out in the city of Lubbock. Voters in Lubbock passed an ordinance declaring their city a, quote, sanctuary city for the unborn. Several other Texas cities had done this, except none of them actually had abortion providers. But Lubbock does. There's a Planned Parenthood there that had only recently begun providing abortion services. The Lubbock ordinance used this same civil enforcement mechanism that we see in SB 8. Planned Parenthood sued to block it, and the judge dismissed their case. So the Lubbock Clinic is still open for other health services, but it has had to curtail abortion services. But Julia says this case, the one against SB 8, is different.
Julia Kaye [00:12:07] There are two top line points. One is that we think that case was wrongly decided and Planned Parenthood's motion for reconsideration is pending. And the other distinction is that in this case, we are not suing the state of Texas in the Lubbock case. Planned Parenthood of Greater Texas sued the city of Lubbock. Here, we're not suing the state of Texas. We're suing the state judges and courthouse clerks who have authority to initiate these enforcement actions to to technically open the proceedings in state court and then to enforce the laws mandatory penalties. So it is clear that federal courts have authority and the obligation to block these kinds of patently unconstitutional laws from taking effect. And that is what we look forward to seeing here.
Garnet Henderson [00:13:02] The legal team is even asking the court to decide on this before it goes to trial.
Julia Kaye [00:13:07] So we filed a motion for summary judgment at the gate, which means we are asking the court to rule definitively in our favor to resolve the case by declaring the law unconstitutional and blocking our defendants from enforcing it. Right right off the bat. That is necessary to ensure that we have relief before September 1st, which is when the law is set to take effect. And that's a completely proper mechanism here. It's it's perfectly appropriate because there is no need for a trial in this case. There are no facts in dispute. Texas is banning virtually all abortions and the U.S. Constitution does not permit that. So this should really be an easy case in terms of the clarity of the constitutional violation here. So we're hoping the court will be able to move very quickly so that we get that relief before the law takes effect. In terms of what might happen after that, you know, I certainly expect that this case is going to quickly go up to the Fifth Circuit Court of Appeals. It will very likely quickly go up to the U.S. Supreme Court with one side or the other asking the of the appellate court and the Supreme Court to step in and take quick action in their favor. So, you know, it will depend on who wins at each level, what what exactly the what posture will be in when we get up there. But I think the reality is this is likely going up to the US Supreme Court and quickly.
Garnet Henderson [00:14:46] Now if you heard Supreme Court and thought, uh oh, aren't most of those justices anti-abortion? Julia says there's actually good reason to be optimistic about the outcome here.
Julia Kaye [00:14:58] Yeah, I think we have two things that are very strongly in our favor here. One is that. The law is crystal clear right now and has been crystal clear for 50 years that you cannot ban abortion and certainly not at the very earliest days of pregnancy. So in that sense, we have a very strong case based on 50 years of precedent. The other thing working in our favor here is thinking through the much broader ramifications. If Texas's transparent scheme to try to evade constitutional accountability gets a green light if they get away with this. There is really no limit to how states and localities can use this model to target any federal right they disfavor, and that includes federal rights that are particularly cherished in conservative communities. So, you know, today Texas is banning abortion. But tomorrow, New York could ban gun sales and permit anyone to sue gun buyers or sellers, offering a hefty bounty to entice endless private lawsuits. Or you could imagine a state authorizing lawsuits by anyone who who sees a Facebook post containing certain conservative sentiments. So the law says you cannot express this particular conservative sentiment online. We're not going to enforce the state. No, no. We're going to authorize anyone, anywhere to take you to court with huge bounties promised as a reward if you're successful. So the list could go on and on. And we are optimistic that the courts will recognize how far reaching and cynical and sinister this scheme is.
Garnet Henderson [00:17:00] So the chances are good, but the stakes are really high.
Julia Kaye [00:17:04] I think it is critical to emphasize that people of color will bear an outsized share of SB 8's burdens just as they already bear the brunt of Texas is a preexisting web of restrictions that already push abortion care out of reach for many. We we know that because of income inadequacy and inequitable access to medical care and other facets of structural racism, people of color are more likely to need abortion care that SB 8 bans. They are less likely to be able to afford out of state travel to try to obtain care, and they'll suffer a greater threat of maternal mortality if they are forced to continue pregnancies against their wishes. And likewise, people living in rural areas, young people and generally Texans with lower incomes will face disproportionate harm. So across the board, a ban on abortion at six weeks is devastating and will cause tremendous pain broadly, but I think it is really essential that we focus on who is likely to feel the harm most acutely.
Garnet Henderson [00:18:40] Thanks for joining us for this bonus episode. Access is produced by me, Garnet Henderson. Our logo is by Kate Ryan and our theme music is by Lily Sloane. Thanks to Julia and the ACLU. Remember, ACCESS is an independent production and you can donate to support us by visiting glow.fm/apodcastaboutabortion. That's in the show notes as well. You can also give us a big boost by sharing the show either directly with a friend or on social media. Follow us on Twitter and Instagram @accesspod. Don't forget to subscribe and leave us a rating or review wherever you listen. If you have an abortion related story you'd like to share, you can email me at accesspodcast@protonmail.com. That's in the show notes, too. A full transcript of this episode will be available on our website, apodcastaboutabortion.com.
