Critics argue that a new Texas law restricting abortions to a brief window around six weeks after conception is both extremely restrictive and extremely expansive.
S.B. 8 effectively bans abortions once a doctor detects “cardiac activity,” critics say, because many women may not even be aware they are pregnant at that point.
However, by allowing private citizens to sue anyone who “aides and abets” an abortion after the roughly six-week gestation period, the law risks unleashing a flood of lawsuits that could include anyone from a doctor who performs the procedure to someone who drives a woman to a clinic or someone who pays for the procedure. If they win, the plaintiffs will be able to recover at least $10,000 for each abortion that is illegal under the law. According to one observer, if a lawsuit involves a large number of defendants, the monetary damages may be much higher.
“The defendant — whether a provider, a funder, a clergyperson, a friend, or a family member — pays the damages, which are set at a minimum of $10,000. If there are multiple defendants, each pays $10,000 in damages,” says Elizabeth Sepper, a health law and religious liberty professor at the University of Texas at Austin’s School of Law. If a plaintiff wins, the defendants “and any lawyer who dares to represent them” will be liable for the plaintiff’s legal fees, according to Sepper. She pointed out that when a case fails, defendants do not have the same ability to collect money from plaintiffs for the costs of fighting the lawsuit.
The language of the law states that a woman’s consent to an abortion is not a defense in a lawsuit. The law also states that a defendant cannot successfully fight a case by claiming that S.B. 8’s requirements are unconstitutional.
According to the researchers, 58 percent of the 600 women seeking abortions in Texas in 2018 called a clinic after six weeks. Planned Parenthood affiliates across Texas say they are either complying with the law or are not currently offering abortion procedures because of it. They do, however, state that they have filed a lawsuit challenging the law.
The letter of the law is one thing; enforcing it is quite another. According to the statute, the terms and provisions in S.B. 8 are “enforced exclusively through private civil actions.” When a plaintiff wins a case, they are entitled to at least $10,000 in damages for each abortion, plus legal fees.
According to the law, women who have abortions cannot be sued, according to the University of Texas researchers. The language in S.B.8 is “so broad that anyone who offers information or referrals for abortion care, drives the patient to a facility, or helps them pay for their abortion — or intends to do so — could face a civil suit,” according to researchers at the University of Texas.
According to the Centers for Disease Control and Prevention, the national average cost for a surgical abortion at 10 weeks was $508 in 2014.
Assume someone in Texas uses Venmo to send money to a friend who needs to pay for an abortion. According to Sepper, the person who sent the cash could be sued under S.B.8.
According to Sepper, Planned Parenthood is currently following Texas law. As a result, donors are not liable, according to her. “However, funding for abortion is clearly permissible under the law — it means prohibiting abortion funds from assisting those who cannot afford abortion and friends and family from assisting pregnant people.”
Shar Dubey, CEO of Match Group, a Dallas-based company that owns dating platforms such as Match and Tinder, sent a company memo addressing the new state law on Wednesday. She described it as a “very sad day” in her own words. Dubey stated that she was establishing a fund “to ensure that if any of our Texas-based employees or dependents are impacted by this legislation and need to seek care outside of Texas, the fund will help cover the additional costs incurred.”
Abortions performed outside of Texas are not subject to the provisions of S.B. 8, according to Sepper. As a result, she said, funding travel or abortions performed outside of state lines are not subject to the law and would not expose Match Group to civil lawsuits under S.B. 8.