How the Texas abortion law may actually be enforced
(TEXAS) — Texas’ new abortion ban is notable for several reasons — chief among them how it is enforced.
The statute, which is the most restrictive abortion law in the country, bars physicians from providing abortions once they detect a so-called fetal heartbeat — technically the flutter of electrical activity within the cells in an embryo. That can be seen on an ultrasound as early as six weeks into a pregnancy — before many women even know they’re pregnant. There is an exception under the Texas law for abortions in cases of medical emergencies.
The law — which is enforced civilly, rather than criminally, by members of the public — can potentially have very broad applications and could result in numerous lawsuits over one suspected illegal abortion, experts told ABC News.
Here’s a look at how the law, known as SB 8, might work in practice.
Who can sue, and be sued
Under SB 8, private citizens — including those who live outside of Texas — can sue a person they “reasonably believed” provided an illegal abortion or assisted someone in getting it in the state, up to four years after the act. Government officials are expressly prohibited from enforcing the law.
“This is a very unusual way to enforce abortion prohibitions, or almost anything else,” Seth Chandler, a law foundation professor at the University of Houston Law Center, told ABC News. “We either criminalize the conduct or we give people who are actually injured by the conduct the right to sue.”
SB 8, rather, “gives virtually anyone on the planet the right to sue, regardless of whether they suffered any injury from the abortion,” he said.
Under the law, plaintiffs can file in the county where they reside, if they live in Texas; where the alleged illegal abortion took place; or where any of the defendants live.
Since anyone can sue, there could potentially be a lawsuit filed in all 254 Texas counties against one doctor for the same abortion, Chandler said. The law also prohibits the consolidation of lawsuits or a change of court venue, which could further burden defendants, he said.
However, doctors found in violation of the law would only have to pay damages once if there were multiple lawsuits filed over a single abortion.
“The pro-SB 8 forces can make life completely miserable for the doctor that they believe has performed an unlawful abortion,” Chandler said. “If you lose once then you can make the other cases go away. But in the meantime, you’re going to have to incur potentially large litigation expenses defending yourself against multiple lawsuits.”
Doctors aren’t the only potential defendants; as stated in the law, they could also be anyone who “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.”
That opens it up to any number of defendants, Priscilla Smith, a senior fellow at the Program for the Study of Reproductive Justice at Yale Law School, told ABC News.
“It could be somebody’s mom who gives them a phone number” for an abortion provider, she said. “It could be your best friend who drives you to the clinic. It could be anybody.”
The law further states that a lawsuit can be brought against someone “regardless of whether the person knew or should have known that the abortion would be performed or induced” — a broad interpretation of which experts say could further widen the scope of potential defendants to, for instance, an unwitting ride-share driver. In fact, days after the law went into effect, the CEOs of Uber and Lyft both announced they would cover all legal fees for drivers sued under SB 8 while driving on their platforms.
In federal court, only the injured parties may sue, though “those rules need not apply in state court,” Chandler said. “A state’s constitution could give a broader class of citizens the right to sue.”
There is a debate if Texas law is in fact broader than federal law, he said.
“That’s the initial step — there’s a question as to whether they have standing or not,” he said.
If the case proceeds, a defendant might be able to file a lawsuit in federal court to enjoin proceedings in the state court, Chandler said. Normally federal intervention in state courts is not permitted, but an SB 8 lawsuit could be a strong case for an exception, he said.
The defendants would raise the defense of Roe v. Wade and argue that SB 8 is unconstitutional, and the court would decide if it protects them, Smith said.
Burden of proof
The plaintiff would have to show that a doctor performed an illegal abortion. That could involve the medical records — protected health information under HIPAA — of the person who received the abortion, who wouldn’t be a party in the lawsuit.
There is some precedent in requesting medical records for parties not named in a lawsuit, Kelly Dineen, an associate professor of law and the director of the health law program at Creighton University School of Law, told ABC News. For example, that could arise during a dispute over a non-compete clause, with medical records requested to show proof of a violation, she said.
“HIPAA does provide a couple of ways that that could, in theory, happen,” Dineen said.
In the case of SB 8, one way could be by the court issuing an order to the abortion provider to disclose the information, she said.
“Let’s say that the person bringing the lawsuit says that an abortion was provided on X date to X person — then that could be specified in the court order,” she said.
The information could also be released during discovery, if the woman the health records are about received notice and didn’t raise any objections, or any objections raised were resolved and the court permitted the disclosure, Dineen said.
The health records could also be obtained through a qualified protective order, which has restrictions on how the information is used, she said.
“The HIPAA requirements make it very unlikely that you could just have generalities,” Dineen said. “You’d have to have pretty good information, and then it would be subject to all those protections as well.”
Lawsuits may come from people with personal knowledge of what happened, Chelsey Youman, the Texas director for the pro-life group Human Coalition Action, told Austin ABC affiliate KVUE.
“It could be the unborn child’s father who knows that there was an abortion conducted and he’s sad he lost a child,” she told the station.
Financial impact, and beyond
There are significant financial penalties at stake, should a plaintiff prevail. Each defendant would be subject to paying $10,000, as well as cover the costs and attorney’s fees of the plaintiff.
“The risk to somebody who just wants to help their friend get an abortion is financially huge,” Smith said. “The risk to a provider is also financially huge.”
There are licensure penalties that can apply as well, which could result in providers losing their license, Smith said.
The law also creates a “retroactive liability” should the Supreme Court overturn Roe v. Wade within the four-year statute of limitations that someone can sue, according to Charles Silver, a professor at the University of Texas at Austin School of Law and co-author of “Overcharged: Why Americans Pay Too Much for Health Care.”
“The history of Republican legislatures has been to eliminate or narrow causes of action,” Silver told ABC News. “But here, the legislature is going in exactly the opposite direction.”
Even if there aren’t any lawsuits filed under SB 8, “the intimidation factor is huge” for medical practitioners, Silver said. “I don’t think we want laws that operate through intimidation, when those laws are themselves unconstitutional.”
Some state lawmakers have already said they will attempt to mimic the near-total abortion ban. Though there could be broader applications if it is successful, law experts said.
“The recipe that SB 8 has developed is not restricted to abortion,” Chandler said. “It can be used for any constitutional rights that people don’t like. And that’s why this bill is so pernicious.”
ABC News’ Alexandra Svokos contributed to this report.
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