Texas Abortion Law: Who Has Legal Standing?

The Texas abortion law is one of the strictest in the country. It prohibits physicians from performing abortions once a fetal heartbeat is detected, which is usually around six weeks into a pregnancy. The law also allows almost anyone to sue over an abortion provided to a survivor, regardless of the circumstances surrounding the pregnancy. However, the perpetrator of rape, sexual assault, or incest cannot sue the victim or anyone who provided or assisted the victim in receiving an abortion. The law also does not allow for the prosecution of a woman who has had an abortion.

Who can be sued under Texas abortion law?

Texas' abortion law, known as Senate Bill 8 (SB 8), bans abortions once medical professionals can detect cardiac activity, which is usually around six weeks, and often before some women know they are pregnant. The law makes no exceptions for rape or incest.

SB 8 allows private citizens to file civil lawsuits against anyone who knowingly "aids or abets" an abortion. If successful, the law instructs courts to award plaintiffs at least $10,000 in damages from defendants. Doctors and abortion providers, drivers who provide transportation to a clinic, or those who help fund an abortion could all be sued under the law. The person who receives the abortion cannot be sued.

Several sections of Texas law allow abortion providers or those assisting with an abortion to be sued or fined. The patient who obtains an abortion is rarely at risk of fines or lawsuits under Texas's statutes. More often, the person performing the abortion is the one who will be fined or sued.

For example, Section 171.208 of the Texas Health and Safety Code allows a third party to bring a lawsuit against anyone who performed, aided, or abetted an abortion. State and local government officers and employees cannot file a suit under this section.

Section 170A.005 of the Texas Health and Safety Code subjects anyone providing or attempting an abortion to a fine of at least $100,000.

A Texas man, Marcus Silva, sued three women for allegedly helping his ex-wife obtain abortion pills. He claimed that helping someone obtain an abortion qualifies as murder under the state's homicide law and the abortion ban, allowing him to sue under the wrongful-death statute. He was seeking at least $1 million in damages from each of the defendants. However, he later dropped the claims.

Who can criminally prosecute under Texas abortion law?

Texas abortion laws are among the most restrictive in the United States. Under these laws, Texas district attorneys can criminally prosecute abortions. However, it is important to note that not all district attorney offices in the state are enforcing these laws. For instance, the DA offices in Dallas, Austin, and San Antonio have publicly announced that they would refrain from prosecuting.

The Texas abortion law makes it a second-degree felony for a person who knowingly performs, induces, or attempts an abortion. The penalty is increased to a first-degree felony if the unborn child dies due to the offense. Performing or aiding an abortion resulting in the unborn child's death is a first-degree felony punishable by five to 99 years in prison. In addition to criminal penalties, the law also imposes administrative penalties, including the mandatory revocation of a medical, nursing, or pharmacy license.

The law also allows for civil lawsuits against those who provide or aid in abortions. Under the law, anyone who helps a person have an abortion can be sued. This includes medical personnel, such as doctors and nurses, as well as family members or friends who may have helped pay for the procedure. The law also allows for civil penalties of at least $100,000, plus attorney's fees and court costs, to be imposed on those who provide or attempt to provide an abortion.

While the Texas abortion law does not allow for the prosecution of the woman who undergoes an abortion, it does expose abortion providers and those who assist them to significant legal risks and penalties.

Who can be criminally prosecuted under Texas abortion law?

Texas abortion laws are some of the strictest in the country. Under Texas law, anyone who performs or aids an abortion or intends to perform or aid an abortion could be criminally prosecuted. Although a person receiving an abortion cannot be prosecuted under the law, anyone who helps the person have an abortion can be.

Among those who could be sued under Texas abortion law include:

• Medical personnel, including doctors and nurses
• A family member or friend who helps pay for the procedure
• A pharmacist who sells an abortion medication
• Anyone who hands a medication abortion pill to another person
• Anyone who drives the patient to a clinic or the place of the abortion

The Texas abortion law prohibits physicians from performing abortions once a fetal heartbeat is detected. The Texas Heartbeat Bill became state law with a trigger in place that subjected it to a Supreme Court ruling which has now effectively enabled it. This legislation went into effect on September 1, 2021, sparking heated debates and legal challenges throughout the nation.

The Texas abortion law makes it a second-degree felony "for a person who knowingly performs, induces, or attempts an abortion." The penalty is increased to a first-degree felony if the unborn child dies due to the offense. Performing or aiding an abortion resulting in the unborn child's death is a first-degree felony punishable by five to 99 years in prison, according to Texas Government Code Sec. 170A.002. Under the law, administrative penalties include the mandatory revocation of a medical, nursing, or pharmacy license. The statute also allows the Texas attorney general to seek a civil penalty of not less than $100,000, plus attorney's fees and costs.

Who can sue under Texas abortion law?

Senate Bill 8 (SB8), also known as the Texas Heartbeat Act, is a Texas abortion law that bans abortions after the detection of cardiac activity in embryos, which usually occurs around six weeks into a pregnancy. The law is enforced by giving individuals the right to sue doctors who perform abortions past the six-week mark. Notably, the law does not allow the person who obtains the abortion to be sued. However, it does allow any private citizen to sue anyone who "aids or abets" anyone in getting an abortion in Texas after the six-week period or anyone who intends to aid or abet that process. This includes suing doctors who perform abortions, as well as suing those who provide financial or logistical help to Texans seeking abortions, such as abortion funds or rides to abortion clinics.

The law has sparked controversy and has been heavily criticized by doctors, women's rights groups, and the Biden administration. The main concern is that many women are often unaware of their pregnancy before the six-week mark, effectively banning abortions in Texas. The law also makes no exceptions for pregnancies resulting from rape or incest, only allowing exceptions in cases of medical emergencies.

The US Supreme Court has ruled that abortion providers can sue to challenge the law, allowing lawsuits from providers to proceed. However, the Court also decided to keep the law in effect, leaving it in place for the foreseeable future. This ruling has been met with mixed reactions, with abortion providers expressing disappointment and anti-abortion organizations celebrating the decision.

The Texas abortion law is unique in its enforcement mechanism, deliberately designed to prevent legal challenges by allowing private citizens to enforce it. This has created a situation where anyone can sue anyone else in Texas or elsewhere on the basis of "intent," making it challenging to determine what actions are legally permissible. This uncertainty has made abortions harder to access in Texas, as many people are unsure of the legal implications of their actions.

What are the exceptions under Texas abortion law?

The Texas abortion law criminalizes performing an abortion from the moment of fertilization unless the pregnant patient faces a "life-threatening physical condition aggravated by, caused by, or arising from a pregnancy." The law does not include any exceptions for cases of rape or incest.

In August 2023, a Texas judge granted a temporary injunction, allowing abortions in cases of medical emergencies, including pregnancies that are unsafe for the mother. The Texas Attorney General's office appealed this decision, but the Texas Supreme Court upheld the injunction, stating that Texas law permits a physician to address the risk of a life-threatening condition before a woman suffers the consequences of that risk.

The Texas Medical Board has proposed guidance for exceptions to the state's multiple abortion bans, aiming to clarify what qualifies as an exception in medical emergencies. However, critics argue that the guidance falls short of providing clear exceptions and does not adequately protect life-saving care for pregnant mothers.

The Texas abortion law also includes an affirmative defense for abortions in the case of ectopic pregnancies or premature rupture of the amniotic membrane in a pre-viable embryo. To prove this affirmative defense, the defendant must show that they exercised reasonable medical judgment in providing treatment for these complications.

While the Texas abortion law does not create a criminal cause of action against the pregnant patient, it does allow for the criminal prosecution of anyone who performs or aids in an abortion.

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