Thursday, September 2, 2021
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