On Sept. 1, a new law banning abortion after six weeks took effect in Texas. The measure, known as SB 8, will not be enforced by government officials—instead it allows anyone to sue any individual who performs, “aids,” or “abets” such an abortion for a minimum of $10,000 plus attorneys’ fees. Republican lawmakers devised this convoluted structure to insulate the law from judicial review, and so far, the gambit has worked: At midnight on Wednesday, the Supreme Court refused to block SB 8 by a 5–4 vote, citing “complex and novel” procedural questions. The decision effectively overturned Roe v. Wade by allowing Texas to ban abortions before viability, a direct affront to nearly 50 years of precedent.
SB 8 has prompted widespread outrage already, but there’s also been a great deal of confusion about how, exactly, it is meant to function. As Chief Justice John Roberts noted in dissent, its scheme is “not only unusual, but unprecedented.” No state has ever before tried to get around the Constitution by “deputizing private parties to carry out unconstitutional restrictions on the state’s behalf,” in Justice Sonia Sotomayor’s words. No one knows exactly how SB 8 will work in practice yet. Below is a list of questions and answers about SB 8, roughly ordered from straightforward to ambiguous to unknowable.
Does SB 8 criminalize abortion?
No. SB 8 does not allow government officials to prosecute anyone for performing or abetting an abortion. Rather, it allows private citizens to sue anyone who performed or abetted an abortion in Texas. Thus, while the measure bans abortion after six weeks, it does not criminalize it. These abortions are illegal in the sense that they violate state law, but they are not (yet) a criminal act.
Are you liable under SB 8 if you induce your own abortion?
Probably not. The bill does not permit lawsuits against patients “on whom an abortion is performed or induced.” So if a person obtains an abortion from a physician, then as a patient, she cannot be sued. But what if she terminates her own pregnancy using abortion pills she bought online? SB 8’s language does not envision this possibility and conceives of abortion exclusively as something that one person does to another. The exemption here appears broad enough to prevent litigation against patients who self-terminate. As a result, Texans who have miscarriages also cannot be sued under SB 8—though their doctors, friends, and family may fall under suspicion for clandestinely “abetting” the end of a pregnancy.
Note, though, that obtaining abortion pills online, or shipping them into Texas from another state, violates other state laws, including strict limits on medication abortion. Any one Texas resident who self-terminates in this way opens themselves up to both civil and criminal liability.
Can insurance companies be held liable under SB 8?
Yes. The bill bars insurance providers from “paying for or reimbursing the costs of an abortion.” Under existing Texas law, patients may only acquire insurance coverage for abortions through a supplemental plan called a rider. But these riders are now functionally illegal, since any insurance company that offered or honored them would be liable for at least $10,000.
If you lose an SB 8 suit, do you have to pay the other side’s attorneys’ fees?
It depends on what side you’re on. If you bring a lawsuit under SB 8 and win, you get to collect attorneys’ fees from the defendant (in addition to the main payout). If you face a lawsuit under SB 8 and win, you get nothing. The law therefore incentivizes frivolous, harassing lawsuits, because plaintiffs need not pay their target’s attorneys’ fees if they lose.
Do you have to live in Texas to file an SB 8 suit?
No. You merely need to file the lawsuit in Texas state court. You can live anywhere.
What happens to abortion providers who are sued under SB 8?
Most public outcry over SB 8 has focused on the monetary damages. But the measure includes another layer of punishment: If a plaintiff prevails under SB 8, the court must issue “injunctive relief sufficient to prevent the defendant” from violating the law again. Marc Hearron, a lawyer for the Center for Reproductive Rights who asked SCOTUS to block the law, told Slate that this provision would shut down abortion providers. If a plaintiff prevailed in an SB 8 suit against a clinic, the court would have to issue an injunction preventing future violations of the law, which Hearron said would probably take the form of a court order shutting down the clinic.
Does SB 8 prohibit Texas residents from traveling to another state to get an abortion?
SB 8’s text does not explicitly limit its scope to Texas. As a general constitutional principle, however, one state cannot regulate the medical practice of another’s. So the bill’s restrictions on abortion almost certainly apply only within Texas’ borders. The tougher question is whether the bill’s restrictions on “aiding or abetting” an abortion could apply even if the procedure occurred out-of-state. For instance, if you drove a friend from Texas to New Mexico to terminate a pregnancy, could you be sued in Texas for “aiding or abetting” her abortion?
Probably not, though the answer is unclear. SB 8 bars “aiding or abetting” an abortion that’s performed “in violation of” Texas law. Again, an abortion performed in New Mexico does not violate SB 8, which seems to regulate the practice of medicine within Texas. Helping a Texas resident travel elsewhere to terminate a pregnancy thus appears unlikely to fall under the law. But the text is ambiguous enough that an aggressive anti-abortion advocate could certainly file a lawsuit attempting to punish such behavior. And the onus would fall on the “abettor” to prove that their conduct falls outside SB 8.
If someone “aids or abets” an abortion in Texas but lives in another state, can Texas punish them? For example, say you live in New York but donate to an abortion fund that pays for procedures that violate SB 8. Can you be sued?
The text of the bill does not limit its geographic scope in this regard, so the answer may well be yes, at least in theory. Giving money for the specific purpose of “aiding or abetting” a Texas abortion likely establishes the minimum contacts necessary for a Texas court to assert jurisdiction over an out-of-state resident.
Can Texas actually ensure that out-of-state defendants pay up?
Probably not, but it’s complicated. Texas has few if any tools to haul non-Texans facing lawsuits into its state courts. It seems improbable that judges would send out marshals to hunt down no-shows, or that many states would cooperate if they tried. That doesn’t mean the out-of-state abettor is off the hook: If a defendant in an SB 8 lawsuit fails to appear in court, the judge must automatically rule against them. Courts might fine these defendants but lack the ability to enforce their decisions. Abortion fund donors may therefore find themselves on the hook for more than $10,000 (plus attorneys’ fees) the next time they cross into Texas state lines.
In this sense, there is a parallel between SB 8 and the stringent Alabama defamation laws that the Supreme Court struck down in 1964’s landmark New York Times v. Sullivan. Alabama used these laws to chill the expression of out-of-state speakers who sought to report on the civil rights struggle or criticize Jim Crow. The threat of ruinous libel suits in Alabama courts limited this kind of media coverage throughout the U.S. Similarly, Texas is using the threat of ruinous lawsuits to stop pro-choice advocates throughout the country from supporting abortion within the state.
Is there an exception for rape and incest?
There is no general exception; in virtually all cases, a pregnancy that resulted from rape or incest may not be terminated, either. There is one minor exception: The “person who impregnated the abortion patient through an act” of rape or incest may not file a suit over her abortion. But this rule is highly ambiguous. For instance, what if a man impregnates a woman who gets an abortion, then sues under SB 8, and the woman accuses him of rape? If he has not been convicted or even charged—and most rapes are not reported—how can courts know whether he is truly a rapist? It seems his culpability would be adjudicated as part of the civil proceeding. The victim would then be dragged into the litigation and interrogated.
Does SB 8 violate HIPAA?
SB 8 allows anyone to collect at least $10,000 if they can prove that (1) someone performed an abortion after six weeks, (2) someone “aided or abetted” a banned abortion, (3) someone formed the intent to perform a banned abortion, or (4) someone formed the intent to “aid and abet” a banned abortion. So how does the plaintiff prove the abortion occurred? The federal health care law known as HIPAA strictly limits health care providers’ ability to share confidential medical records with third parties. But the law specifically pertains to medical records, so nosy neighbors do not run afoul of HIPAA by telling a court that they suspect someone of getting an abortion. (Similarly, private citizens cannot violate HIPAA by simply asking someone about their vaccine status, or even by revealing that someone has not been vaccinated.)
But if these nosy neighbors filed an SB 8 suit, could they get their hands on someone’s abortion records to prove that it occurred? Presumably, though they would have to file suit first, then ask a judge to make the clinic turn over the paperwork. Such an order might conflict with HIPAA by forcing the unapproved transmission of private medical information. The conundrum is made stickier by the fact that the patient herself is not (and cannot) be a party to the suit, potentially limiting discovery into her records. David Donatti, a staff attorney with the Texas ACLU, captured the confusion over patient privacy—and many other lingering questions about SB 8— when he told KVUE, “I don’t know that anybody knows.”
