Thursday, September 2, 2021

A Closer Look at the Text of the Texas Abortion Prohibition and Its Unusual Provisions

The Texas abortion ban that went into effect 9/2/21 after the Supreme Court refused to stay the act in Whole Women's Health v. Jackson,  has several unusual provisions not only for abortion rights, but for enforcement of constitutional rights generally.  The full text is here.

1.  This is a fetal heartbeat law.  (not exactly a "six-week ban").

Sec.171.204.PROHIBITED ABORTION OF UNBORN CHILD WITH
  DETECTABLE FETAL HEARTBEAT; EFFECT. (a)Except as provided by
  Section 171.205, a physician may not knowingly perform or induce an
  abortion on a pregnant woman if the physician detected a fetal
  heartbeat for the unborn child as required by Section 171.203 or
  failed to perform a test to detect a fetal heartbeat.

2.  There is an exception for "medical emergency."

Sec.171.205.EXCEPTION FOR MEDICAL EMERGENCY; RECORDS. 
  (a)Sections 171.203 and 171.204 do not apply if a physician
  believes a medical emergency exists that prevents compliance with
  this subchapter.

3.  A woman cannot be sued or "prosecuted" for having the abortion.

 Sec. 171.206.  
   
   
         (b)  This subchapter may not be construed to:
               (1)  authorize 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

4.  But those who "aid and abet" the woman or the physician are liable.

knowingly engages in conduct that aids or abets
  the performance or inducement of an abortion, including paying for
  or reimbursing the costs of an abortion through insurance or
  otherwise, if the abortion is performed or induced in violation of
  this subchapter, regardless of whether the person knew or should
  have known that the abortion would be performed or induced in
  violation of this subchapter

5.  It provides solely for private enforcement by private civil action.  No state or government actor can enforce the law. 

Sec.171.207.LIMITATIONS ON PUBLIC ENFORCEMENT.
  (a)Notwithstanding Section 171.005 or any other law, the
  requirements of this subchapter shall be enforced exclusively
  through the private civil actions described in Section 171.208. No
  enforcement of this subchapter, and no enforcement of Chapters 19
  and 22, Penal Code, in response to violations of this subchapter,
  may be taken or threatened by this state, a political subdivision, a
  district or county attorney, or an executive or administrative
  officer or employee of this state or a political subdivision
  against any person, except as provided in Section 171.208.
Sec.171.208.CIVIL LIABILITY FOR VIOLATION OR AIDING OR
  ABETTING VIOLATION. (a)Any person, other than an officer or
  employee of a state or local governmental entity in this state, may
  bring a civil action

Except not a sexual perpetrator:

a civil action under this
  section may not be brought by a person who impregnated the abortion
  patient through an act of rape, sexual assault, incest

 

6.  Remedies that may be awarded to the person suing to stop the abortion are an injunction, statutory damages, and attorneys' fees.

If a claimant prevails in an action brought under this
  section, the court shall award:
               (1)injunctive relief sufficient to prevent the
  defendant from violating this subchapter or engaging in acts that
  aid or abet violations of this subchapter;
               (2)statutory damages in an amount of not less than
  $10,000 for each abortion that the defendant performed or induced
  in violation of this subchapter, and for each abortion performed or
  induced in violation of this subchapter that the defendant aided or
  abetted; and
               (3)  costs and attorney's fees.

7.  Tries to limit the defendant's (provider or accomplice) ability and standing to assert the constitutional right of the woman. 

Notwithstanding any other law, the following are not a
  defense to an action brought under this section:
               (1)  ignorance or mistake of law;
               (2)a defendant's belief that the requirements of this
  subchapter are unconstitutional or were unconstitutional;
Sec.171.209.CIVIL LIABILITY: UNDUE BURDEN DEFENSE
  LIMITATIONS. (a)A defendant against whom an action is brought
  under Section 171.208 does not have standing to assert the rights of
  women seeking an abortion as a defense to liability under that
  section unless:
               (1)the United States Supreme Court holds that the
  courts of this state must confer standing on that defendant to
  assert the third-party rights of women seeking an abortion in state
  court as a matter of federal constitutional law; or
               (2)the defendant has standing to assert the rights of
  women seeking an abortion under the tests for third-party standing
  established by the United States Supreme Court.

See also Wash Post, What to Know about the Texas Abortion Law

               Strict Scrutiny Podcast, Emergency Podcast on Texas Abortion Law

https://lawprofessors.typepad.com/gender_law/2021/09/a-closer-look-at-the-text-of-the-texas-abortion-prohibition-that-just-went-into-effect.html

Abortion, Legislation | Permalink

Comments

I am puzzled about many things in the law, and hope that a knowledgeable person will explain.

The law appears to define "fetal heartbeat" as contraction of a heart. But all discussion seems to assume that it applies to electrical signals in an embryo that does not yet have a heart. Is the lack of a heart a defense, in the presence of such electrical signals?

Are there not general rules about standing to sue, either in the Texas constitution, the US constitution, or applicable common law, that prohibit the sort of litigation by an unharmed person indicated in this law?

The law expresses a prohibition on certain behavior, but is that prohibited behavior now a crime? If so, then general rules on criminal defense should apply. If not, then the prohibition is weird beyond my understanding, so I wonder what sorts of legal conventions could be used to challenge it, or whether it's so far out that the law hasn't addressed it.

Posted by: Michael O'Donnell | Sep 6, 2021 7:18:19 PM

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