In early September, the United States Supreme Court declined to issue a stay of a Texas law imposing some of the nation’s tightest restrictions on abortion, pending a full hearing by the court on legal challenges to the measure. The law bans abortions upon the detection of cardiac activity in embryos, which usually occurs after six weeks of gestation—before many women know they are pregnant—and uses an unusual enforcement mechanism involving civil lawsuits, rather than criminal prosecution, to create liability for anyone who performs, “aids or abets,” or intends to aid or abet such an abortion. The court’s one-paragraph, unsigned ruling, against which four justices dissented, noted the unusual nature of the law in deciding not to issue a stay. It cited “complex and novel antecedent procedural questions” that made weighing the law’s constitutionality a challenge.
Senate Bill 8 implements some of the broadest restrictions on abortion in the nearly fifty years since the U.S. Supreme Court decided the landmark Texas case Roe v. Wade, which found a constitutional right to privacy that included the right to have an abortion. Texans are struggling to understand the same “complex and novel” questions that the high court declined to weigh in on for now. Here are answers to some of those questions.
WHAT DOES THE LAW DO?
How does the law work?
SB 8 allows any private citizen in Texas, or elsewhere, to sue anyone who performs an abortion in the state after an embryo’s cardiac activity can be detected. It also allows any private citizen to sue anyone (in Texas or elsewhere) who “aids or abets” anyone in getting an abortion in Texas after that period or anyone who intends to aid or abet that process.
The law has been reported on as a “six-week” abortion ban. When does the six-week period begin?
Calling the law a six-week abortion ban is a slight misnomer. SB 8 doesn’t look at gestational age; the law cares about the presence of cardiac activity, which is typically detected around six weeks after the embryo has been formed.
How are “aid or abet” and “intent” defined?
“Aid or abet” isn’t defined at all in the law. “Intent” has a legal definition—think “possession of illegal drugs with intent to distribute”—but there are few cases where the mere intention of doing something, without taking any action, creates criminal or civil liability, as it does under SB 8.
We don’t know yet how the courts will define intent in the context of SB 8. The law creates standing for anyone to sue, and it lets the courts decide whether the defendant actually had the intent to aid someone in obtaining an abortion.
WHO CAN BE SUED?
Can you be sued if you get an abortion after cardiac activity is detected in the embryo?
No. The law specifically exempts the person who is getting the abortion from being sued.
Could you be sued for donating to an abortion fund that provides financial or logistical help to Texans seeking abortions?
Yes. The lawsuit might not succeed. That’s up to the court. But anyone who wants to sue someone who donates to an abortion fund has standing to do so under SB 8.
What if you write “Please don’t use this for any abortions after six weeks” on the memo line of the check?
You could still be sued, but in that case, it would be evidence in your favor that your intent was not for the money to go toward an abortion that happened after six weeks. Like any evidence, it would be up to a judge or jury to decide how to interpret it.
Can you be sued for planning to donate to an abortion fund but never getting around to mailing the check?
How would that work?
Until someone is sued under this law and a case proceeds, what sort of act will signal intent to the court has yet to be determined. Is intent formed if you, say, state to someone that you want to give to an abortion fund but can’t find your checkbook? What if you write and sign the check but can’t find a stamp? What if your internet connection goes out while the PayPal page is loading? These are the questions the courts will have to decide in determining what “intent” looks like.
Can a ride-hailing app driver who takes someone to an abortion clinic be sued?
Yes. There are questions about whether such a lawsuit would succeed—did the driver form an intent to aid or abet the abortion, or did he or she look only at the street address that popped up on the phone without noticing where the rider was going? Both Uber and Lyft have pledged to fully cover legal costs for any driver sued under the bill.
Could you sue a pilot or driver who takes someone out of state to get an abortion?
No. The abortion has to take place in Texas to be subject to state law.
What if you have a miscarriage or a nonviable pregnancy and you need a dilation and extraction procedure to remove the fetus? Can the doctor who does that be sued?
It depends. If there is no cardiac activity in the embryo, then the law does not apply. If there are embryonic abnormalities that make the pregnancy nonviable but there is still cardiac activity, then it does.
The law makes an exception if continuing the pregnancy presents a danger to the life of the woman who gets the abortion or if it could lead to “substantial and irreversible impairment of a major bodily function.” Doctors who decide to perform the procedure under these circumstances will have to determine how confident they are that the courts will agree with their opinion about whether those risks were present.
What are the consequences if you get sued?
Each lawsuit has a minimum statutory damage amount of $10,000, with the damages collected by the plaintiff as a sort of bounty. There’s no upper limit on the amount for which a defendant can be sued. It’s not clear yet if a person who gets sued under SB 8 can be sued by multiple parties or if the first lawsuit to be adjudicated will be the only one that results in damages. The law, as written, allows unlimited lawsuits, which could be filed by anyone anywhere in the country.
What happens if the lawsuit is unsuccessful?
The person who is sued is still on the hook for his or her attorney fees and court costs, as well as travel costs if the case is heard far from the defendant’s home, as the law does not specifically allow defendants to pursue reimbursement on those charges.
So someone I don’t know could sue me for intending to aid someone else I don’t know in obtaining an abortion, and I still have to pay a lawyer to defend myself and might have to travel to a court far from my home?
WHAT HAPPENS NEXT
What does this mean for abortion access in Texas right now?
Texas has only around twenty abortion clinics, roughly half the number that operated in the state in 2013, right before Texas passed a restrictive abortion law. As of September 1, in order to comply with the law, they all stopped performing abortions after cardiac activity is detected. After a federal district judge issued a stay of the law on October 6, some clinics resumed performing abortions. It’s unclear whether they will continue to do so after the appellate court makes its next move.
Could the bill strain the legal system?
Creating standing for any individual in Texas or elsewhere to sue any other individual in Texas on the basis of “intent” puts the state in uncharted legal territory. That’s not necessarily a bug of this law, though; it’s more of a feature. Lawmakers who supported the bill were fairly clear that the intention of SB 8 was to reduce the number of abortions performed in Texas. The bill creates circumstances under which it is hard to know whether driving someone to a bus station or passing someone a list of phone numbers for abortion providers is legally actionable, and many are likely to err on the side of caution, as even lawyers don’t know exactly know how SB 8 will be applied. That uncertainty alone is likely to make abortions harder to get.
Have any lawsuits been filed in Texas under SB 8 yet?
Yes. In September, a San Antonio doctor, Alan Braid, performed an abortion after fetal cardiac activity had been detected. (He wrote about his reason for doing so in an op-ed in the Washington Post.) On September 20, Oscar Stilley, a self-described “disbarred and disgraced” former Arkansas lawyer, filed the first lawsuit under SB 8. Stilley’s suit seeks $100,000 from Braid. The two have no connection one another, and Stilley has no connection to the woman for whom Braid performed the abortion. Stilley told KXAN the day after filing the suit that he opposes SB 8, and thinks Braid has “got guts,” and was curious to see how a suit such as his would play out in the courts. Another man, who also has no relation to the case, filed a similar suit against Braid days later; the plaintiff in that case, Felipe N. Gomez of Illinois, identifies himself as “pro-choice” and in lieu of monetary damages, asked in the suit for the courts to find the law unconstitutional.
It’s unclear if anyone who is in support of the law has filed a suit as of yet. Because of how the law is written, there is no difference between a suit filed by someone who has no connection to the case and opposes SB 8, and a suit filed by a staunch anti-abortion activist who is a family member of the Texan on whom the procedure was performed.
HOW HAS THE FEDERAL GOVERNMENT RESPONDED?
How has Congress responded to the Texas abortion ban?
House Speaker Nancy Pelosi has pledged to introduce reproductive-rights legislation that would prohibit states from enacting restrictive abortion measures. In a statement issued hours after the Supreme Court declined to issue a stay on SB 8, New York representative Jerrold Nadler announced that the House Judiciary Committee, which he chairs, will hold hearings to investigate the high court’s use of the “shadow docket” (more on this below), which he called “dangerous and cowardly.” If the committee moves forward, it won’t be the first time lawmakers have probed the shadow docket: in February, House members held a similar hearing.
SB 8 drew outrage from some Republicans. Others in the party, such as Senator Bill Cassidy, of Louisiana, said they don’t expect the law to hold up in court. “I think the Supreme Court will swat it away once it comes to them in an appropriate manner,” Cassidy said on ABC’s This Week.
How has the Department of Justice responded to SB 8?
In early September, the Department of Justice filed a lawsuit in federal court that seeks to permanently block the new law’s enforcement. At a news conference, Attorney General Merrick Garland said SB 8 is invalid under the Supremacy Clause, which ensures that federal laws take precedence over state laws, and the Fourteenth Amendment, which guarantees Americans equal protection under the law. Garland also said the Texas law violates the doctrine of intergovernmental immunity, a constitutional law principle that prevents federal and state governments from intruding on each other’s sovereign powers. Noting that the statute makes it too risky for abortion providers to remain open in Texas, Garland warned that SB 8 could become “a model” for overturning other judicial precedents. “Nor need one think long or hard to realize the damage that would be done to our society if states were allowed to implement laws that empower any private individual to infringe on another’s constitutionally protected rights in this way,” he added.
WHAT IS THE BILL’S STATUS IN THE COURTS?
What’s next for the case that went to the Supreme Court?
Whole Woman’s Health v. Austin Reeve Jackson, the lawsuit that the U.S. Supreme Court declined to rule on for now, hasn’t been decided on its merits. It hasn’t really come before the Supreme Court—the order that came down in early September was part of the court’s “shadow docket.”
What is the shadow docket, and why does it matter in this case?
“Shadow docket” is a term that was coined in 2015. It describes procedural methods that the Supreme Court has relied upon since its inception to issue decisions that follow emergency petitions, such as stays of execution. The decisions are not accompanied by oral arguments and lengthy opinions. The shadow docket has been used with far greater frequency since the beginning of the Trump administration, and it was recently used to rule on consequential cases involving the national eviction moratorium and immigration.
In the case of SB 8, in which more than twenty abortion providers filed for a stay, the court issued an unsigned, four-hundred-word statement saying it would not issue such a stay, though four justices, including Chief Justice John Roberts, wrote dissents to that decision. The statement did not address the constitutionality of the Texas law or how the government might implement the new law.
Stephen I. Vladeck, a University of Texas at Austin law professor who is writing a book about the rise of the shadow docket, said the lack of transparency surrounding SB 8 is particularly disconcerting. “Imagine if the court had instead provided guidance about who the right parties might be in a potential lawsuit involving SB 8,” he said, pointing out that many women will likely be affected by the court’s inaction while the controversial law is challenged in lower courts. “The less the court says, the less guidance it gives to everybody, whether that’s lower courts, government actors, or those whose rights are being infringed upon.”
When will cases actually be heard?
On Wednesday evening, Robert Pitman, a federal district judge, issued a scathing 113-page opinion on SB 8, in response to a lawsuit filed by the U.S. Justice Department. In his opinion on that suit, United States of America v. The State of Texas, Pitman answered many of the “complex and novel” questions that the Supreme Court declared itself unprepared to resolve in the short, unsigned opinion it issued in early September. The key takeaway from Pitman’s ruling is that because of the law “women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.” (In a footnote in the ruling, Pitman also notes that transgender men and nonbinary Texans who seek abortion services are similarly prevented from exercising said control.) The ruling enjoins the law from going into effect, at least for now.
Does this mean that the law has been overturned?
No. In the immediate term, the law is not in effect, but that can change. While SB 8’s journey through the courts has been unusual for an abortion law given the “shadow docket” ruling, the basic order of how these cases proceed is as follows: a federal district judge hears the case first, then the losing party (in this case, the State of Texas) files an appeal with the Fifth Circuit Court of Appeals, which is one of the most conservative appelate courts in the country. Then whoever loses at the Fifth Circuit appeals to the Supreme Court. Higher courts also may issue emergency injunctions and stays of injunctions along the way.
Texas filed an appeal to the Fifth Circuit within hours of Pitman’s ruling. The Fifth Circuit may decide to issue an emergency stay of Pitman’s ruling, which would allow the law to go back into effect, or it may allow his ruling to stand until it hears arguments and makes its own ruling. If the Fifth Circuit does issue an emergency stay, the plaintiff (in this case, the United States of America) can appeal that decision to the Supreme Court. All of which is to say that we don’t know exactly what happens next. This is all likely to happen within the next few weeks.
Will we know if the law is constitutional or not at that point?
No, that’ll come later. Once the question of emergency stays are settled, the Fifth Circuit (and likely the Supreme Court) will hear arguments on the merits of the law, then determine whether it is constitutional or not.
How long will that take?
It’s hard to say. The appeals process will take a while. Whole Woman’s Health v. Hellerstedt, the last major abortion ruling in the U.S., was filed in the aftermath of Texas’s 2013 law restricting the procedure and wasn’t ruled on by the Supreme Court until three years later. The court struck down provisions of the law requiring that doctors performing abortions have admitting privileges at nearby hospitals and that abortion clinics meet the same standards as other surgical facilities in the state.
What could happen when the Supreme Court finally hears the case?
A few things. It could decide that the law is unconstitutional by the precedent established by Roe v. Wade and strike down the law entirely. It could also potentially leave Roe in place but find that private citizens do have the right to sue one another over actions related to abortions, in which case SB 8 would be upheld.
The Supreme Court could also find that Roe was improperly decided in 1973 and overturn that ruling—in which case SB 8 would be constitutional. (If this happens, a separate “trigger law” the Lege passed this year will kick in, allowing the state to enforce criminal penalties for anyone who performs an abortion in Texas, obviating the rationale for the civil lawsuits SB 8 allows.) Or the Court might allow certain parts of the law—say, suits against doctors—while striking down others, such as suits against Uber drivers.
Will there be lawsuits about SB 8’s constitutionality?
There have already been a few, though the larger, long-term question of constitutionality isn’t going to be resolved by them. A group of abortion providers sued to prevent Texas Right to Life from filing lawsuits against their doctors and employees under SB 8. They were granted a temporary restraining order in that case, and Planned Parenthood filed its own suit seeking the same thing a few days later. Those cases will proceed in state court rather than federal court, and the hearings for those cases will lay down some of the arguments that will come up as the challenges to the law proceed through the state court system.
What’s the difference between state court and federal court here?
Normally, constitutional challenges to a state law proceed through federal court because one party sues the state on the federal question of whether the state’s law is consistent with the U.S. Constitution. That has happened here, in Whole Woman’s Health v. Austin Reeve Jackson. The question before state courts is whether SB 8 is valid under Texas law, which requires the consideration of different factors. The cases filed by Planned Parenthood and other abortion providers won’t fully determine that question—that will probably come if and when someone is sued under SB 8.
When will those cases be fully decided?
It’s hard to say. Even if rulings from district judges at the state and federal level come soon, the appeals process will take a while. Whole Woman’s Health v. Hellerstedt, the last major abortion ruling in the U.S., was filed in the aftermath of Texas’s 2013 law restricting the procedure and wasn’t ruled on by the Supreme Court until three years later. The court struck down provisions of the law requiring that doctors performing abortions have admitting privileges at nearby hospitals and that abortion clinics meet the same standards as other surgical facilities in the state.