BONUS. Fact Check: Texas SB 8
Can a person be sued for having an abortion in Texas? Can abortion funds still help people travel out of state? What did the Supreme Court do, and what’s next? Breaking down the facts and busting a few myths about Texas law SB 8.
Resources:
Digital Defense Fund guides for online safety and privacy
National Abortion Federation hotline (abortion referrals and financial assistance)
Texas Abortion Funds:
More funds:
Indigenous Women Rising (open to all indigenous people in the U.S. and Canada)
Mariposa Fund (helps undocumented people seeking abortions)
Brigid Alliance (helps people travel for later abortion care)
Support independent abortion providers:
Logo by Kate Ryan, theme music by Lily Sloane.
50% of proceeds from ACCESS merch sales this week go to Texas abortion funds.
EPISODE TRANSCRIPT
[intro music]
Garnet Henderson [00:00:32] Welcome to a special episode of Access, a podcast about abortion. I'm your host, Garnet Henderson. I just wanted to jump into your feeds because a lot has happened this week, to say the very least, as I'm sure you've heard. The Supreme Court has allowed a Texas law called SB 8, which bans abortion around six weeks of pregnancy to go into effect. Until this week no law banning abortion earlier than 20 weeks was in effect anywhere in this country. People are scared and confused, and rightly so. But I've also seen a lot of misinformation about SB 8 on social media, so I wanted to do some fact checking. I'm going to give you an overview of what happened, what we might expect next, and then answer some questions about what this law does and does not do. So first a recap. Back in July, I spoke with Julia Kaye of the ACLU. We did an episode all about SB 8 and the legal fight against it. And before that, in episode ten, we heard from. Kenyan Connor, the executive director of an abortion fund called the T Fund in Texas. Kenyan told us about how SB 8 will affect her work and the people she helps. So I really recommend going back and listening to those two episodes if you haven't yet. But here's a brief rundown on how we got here. SB 8 is a law that bans abortion in the state of Texas once embryonic cardiac activity can be detected. This is usually possible around six weeks of pregnancy, which is why you'll often hear this referred to as a six week ban. But with advanced ultrasound technology, this can be possible closer to five weeks. And remember, we're talking about pregnancy the way it is usually dated in medical settings. That means we're counting from the first day of the pregnant person's last menstrual period. So this isn't five or six weeks from fertilization or from the day you had sex. It's five or six weeks from the start of your last period, meaning only one or two weeks past a missed period. And that's assuming you have a perfectly regular menstrual cycle, which many people do not. Several other states have passed six week abortion bans, but they've all been blocked by federal courts. That's because they are an egregious violation of Roe versus Wade, in which the Supreme Court held that abortion must be legal up until the point of fetal viability. For the record, many states now ban abortion at 20 weeks, which is also a violation of Roe because viability doesn't occur until around 23 or 24 weeks. For many years, lots of people, myself included, thought it would probably be one of these 20 week bans that would make its way to the Supreme Court and potentially overturn Roe versus Wade. But abortion hostile states have become incredibly emboldened in recent years and escalated dramatically. So now we're often talking about a six week or 15 week bans instead of those 20 week bans. What's different about SB 8 is that instead of relying on the state to enforce it like any previous abortion ban, it places enforcement in the hands of private citizens, encouraging them to sue anyone who provides or assist someone in getting an abortion in Texas after six weeks, if they win they get $10,000. Pretty big incentive. This strange and unprecedented private enforcement strategy was designed to make SB 8 more difficult to challenge in court. And so far this has been true. Now, bear with me. I'm going to try to explain the legal mess here as briefly as I can. A big legal team, including the Center for Reproductive Rights, the ACLU, the Lawyering Project and Planned Parenthood, sued to block SB 8 on behalf of a large group of abortion providers, funders, clinic staff and clergy members. Instead of suing the state, as they would normally do to block an abortion ban, they had to sue all the clerks of court and state court judges in Texas, because those are the people who would be presiding over these abortion bounty lawsuits. Again, you can hear more details about this in my conversation with Julia Kay, two episodes back in the feed here. This challenge was filed in federal district court. The defendants in the case, that's the judges and the clerks filed motions to dismiss, asking the district court judge to just throw out the case against them. The district court judge denied those motions, allowing the case to go forward and scheduled an injunction hearing for August 30th, just two days before SB 8 was set to go into effect. Had abortion providers succeeded in getting that injunction? It would have stopped enforcement of SB 8, at least temporarily. But the defendants appealed the district court decision to the Fifth Circuit Court of Appeals and filed a motion asking the Fifth Circuit to stop proceedings in the District Court. The Fifth Circuit granted this motion so the injunction hearing was suddenly canceled. Abortion providers then filed an emergency motion with the Fifth Circuit asking it to let the case proceed in district court. But their motion was denied. So then they filed an emergency request with the Supreme Court asking the Supreme Court to either block SB 8 from going into effect or to allow the proceedings to continue in District Court. By 11:59 p.m. Central Time on August 31st, the Supreme Court hadn't responded, so SB 8 went into effect at midnight, September 1st. Late the next night, the Supreme Court did issue a decision officially declining to block SB 8. In a 5-4 vote. So here's our first question. Does this mean the Supreme Court just overturned Roe versus Wade? Technically, no. The court didn't actually rule on the constitutionality of SB 8. They pretty much said, hmm, this is complicated and then declined to block enforcement of the law while it's challenged in lower courts. But effectively, they did invalidate Roe in Texas because they allowed a law that blatantly violates that precedent to go into effect. So what happens next? Well, the case is still sitting with the Fifth Circuit Court of Appeals, but federal appellate courts are busy and slow and it could take months to get a ruling. Plus, the Fifth Circuit is an extremely conservative court. The chances of a positive outcome here are pretty slim. Either way, this case is likely to spend some time moving through the lower courts and then will almost certainly be appealed back up to the Supreme Court. By that point, though, it might not matter much because the Supreme Court has a case on its docket this term called Dobbs versus Jackson Women's Health Organization. This case gives the court a chance to overturn Roe once and for all, if that's what the justices want to do. Another possibility is that they may keep doing what they did here, not technically overturning Roe, but just letting the laws that violate it go into effect. Our next episode is going to be all about this coming Supreme Court term and what it means for abortion access. So I'm going to leave this here for now. You may have heard that this week, President Joe Biden kind of said the word abortion for the first time since he took office, in reference to SB 8. He also said that he was directing the federal government to look into what it can do to ensure access to abortion in Texas. House Speaker Nancy Pelosi said the House of Representatives will vote on the Women's Health Protection Act, a law that would essentially codify Roe versus Wade into federal law. However, to be perfectly frank, none of this is likely to help at all. The Women's Health Protection Act may indeed pass in the House, but in the Senate it won't have enough votes to pass without getting rid of the filibuster, which President Biden has said he does not want to do. Turning back now to the law itself. There are two major myths I want to address. First, I've seen a lot of people claim that it's now possible to sue someone for having an abortion in Texas. This is not true. The text of the law specifically prohibits enforcement against a person who has an abortion. However, any doctor who performs an abortion in Texas after about six weeks and any person who helps someone get an abortion in Texas after six weeks can be sued. So that can include someone who gave you money, worked or volunteered at a clinic, drove you to your appointment, came with you for moral support, just about anything. The other big myth I've seen is that you can be sued if you help someone get an abortion outside of Texas, like if you help a Texan go to a different state to have their abortion. This is not true. And I confirmed that yesterday with attorneys at the Center for Reproductive Rights. SB 8 is a Texas state law. It bans abortions in Texas after about six weeks. You can't be sued for helping someone get an abortion outside of Texas, however. And stick with me here. Any person in any state can sue any other person who helps someone get an abortion in violation of SB 8 in Texas. So, for example, I live in New York. If I sent a friend money and then they used that money to pay for an abortion that happened in Texas after six weeks, then I could be sued and the person who sues me doesn't even have to be a Texas resident. But if I give money to my friend and they use it to travel out of Texas to have their abortion, then I can't be sued. So in response to some listener questions. Yes. Texas abortion funds can still help people get abortions in Texas before six weeks, and they can help them travel out of state after six weeks. To be clear, though, this doesn't mean that people won't give it a try and file nuisance lawsuits against abortion funds and providers in Texas based on false claims that they're violating the law. We might start to see that happen. In fact, that is the real goal of this law to scare people and confuse them, to make pregnant people feel that they can't seek an abortion or can't talk to anyone about it for fear of getting them in trouble and to scare abortion providers. Funders, all types of assisters out of doing what they do to help people. According to Amy Hagstrom Miller, who you heard from in our last episode about crisis pregnancy centers at the whole women's health clinic in Fort Worth, staff worked until 11:56 p.m. the night before SB 8 went into effect. They tried to help as many people who would be past that six week deadline once the law went into effect as they could. She said that anti-abortion protesters in the parking lot were shining lights into the clinic's windows, trying to surveil the staff, and that they called the police and fire departments multiple times in attempts to force the clinic to shut down early. That one clinic did 67 abortions and 50 follow up appointments in one day. There are a few cases in Texas state court where advocates for abortion access have sued to block Texas right to life from suing them under SB 8. This may be a successful strategy, but abortion providers can't preemptively sue every single person or group who might sue them under SB 8 because anybody can sue them. That's exactly what's so tricky about this. That brings me to our next question, which is what will these vigilante lawsuits look like? The truth is, we don't know exactly because there's never been a law quite like this one in the entire history of our country. What we do know is that the law is written to make things as miserable for the person who gets sued as possible. For example, if you successfully sue me under SB 8, I have to pay you $10,000 and pay for your attorney's fees. But if you sue me and I win, I prove that I didn't violate the law. I don't get anything. I'm still out whatever I spent defending myself. So again, the ultimate goal here is to shut clinics and abortion funds down, to take away most of their patients and potentially to bankrupt them with frivolous lawsuits. Right now, most clinics in Texas remain open and are providing abortions for people before six weeks. That means they're only able to help about 10% of the people they normally could. Anyone else who needs an abortion either has to travel out of state or try a self-managed abortion. So that brings me to another question. Could this law be used to sue someone for helping with a self-managed abortion? Technically, no. SB 8 specifically says that physicians in Texas can't perform abortions once that embryonic cardiac activity can be detected. So on a press call the other day, Mark Herron of the Center for Reproductive Rights, who you also met in our last episode, said that based on the best reading of the law, no, it doesn't ban self-managed abortion. But again, it is possible that someone could try to sue you for helping with a self-managed abortion, even though they probably wouldn't be successful. And as we learned from Jill Adams of If/When/How in episode three, people have been criminalized under various statutes for self-managed abortions long before SB 8. In fact, if you haven't heard that episode, it would be a good one to go back and listen to because it's all about self-managed abortion, something a lot of people are hearing about for the first time. Finally, I've been asked what people should do if they live in Texas, are capable of getting pregnant, and are worried about the availability of abortion. This may be an especially big concern for people who don't get periods or don't get them regularly because of a medical condition or the type of birth control they use or hormones they may take. What many medical experts have recommended is that you buy pregnancy tests. You don't need those fancy digital ones, just cheap paper strips, buy them in bulk and test yourself regularly. That way, you'll find out about any pregnancy as soon as possible. 8 Access, another organization mentioned in episode three, is now offering advance provision of medication abortion to people living in Texas. That means they'll send you abortion pills right now, even if you're not pregnant, so that they're ready when you need them. This approach is supported by experts, including Dr. Daniel Grossman. Also a guest in episode three. You can also call the miscarriage and abortion hotline to talk to a medical professional about self-managed abortion or a miscarriage. I need an a dot com and need abortion dot org both have up to date information and resources and If/When/How has a legal help line that people can call for information about the laws in their area? I'm going to link to all of those resources in the show notes as well as to every Texas abortion fund. And again, to learn more about self-managed abortion, using pills which is safe and highly effective, go back and listen to Episode three. that's all for this special episode. But please, if you have more questions or a story you want to share. Reach out to me at Access Podcast at Proton dot com. We've got some amazing new merch in the store this week. T-shirts, sweatshirts, mugs, stickers, tote bags, almost anything you can think of. All those items feature text that says Say the word abortion with designs by Kate Ryan, who also created our wonderful logo by one of those items this week, and I will donate half of the proceeds to Texas abortion funds. That link is in the show notes. Access is produced by me, Garnet Henderson. Our logo is by Kate Ryan and our theme music is by Lilly Sloan. Support the show by buying merch or donating at the links in the notes or by sharing the show with a friend. Don't forget to subscribe to ACCESS wherever you get your podcasts and leave us a rating or review. Follow us on Twitter and Instagram at @accesspod. I am admittedly very behind on transcripts, but they will be up soon at apodcastaboutabortion.com.
