The Texas heartbeat act (SB8) is a travesty. It’s a disaster for women. It’s an abomination for anyone who believes in freedom and limited government. It’s a farce for anyone pretending to care about due process. And you don’t need to take my word for any of this; you can read the full full act with annotation here. But, to save you some time, here are some of the worst things about the Texas anti-abortion law.
- 10 Reasons Texas SB8 is Terrible
- 1. It’s an End Run around Roe v. Wade
- 2. No Exceptions for Rape or Incest
- 3. Many Women Don’t Know They’re Pregnant at Six Weeks
- 4. Legalized Vigilante Justice
- 5. Unlimited Nuisance Lawsuits
- 6. Unlimited Financial Damages – Not just $10,000
- 7. Damages for “Intent”
- 8. Retroactively Removes Existing Protections
- 9. Several Other Issues
- A. lost Challenges to Any Abortion Law will cost you financially
- B. It Forces Women & their doctors to Testify Against Themselves
- C. It Forces Woman to Call Fetus “Unborn Child”
- D. it’s a Financial Lynching of Poor & Minority Women
- E. It severs all parts of all abortion laws from all others
- F. It encourages even worse local laws
- 10. It’s a Cancer that Will Spread & Divide the Nation
- Other Texas Heartbeat Act Resources
10 Reasons Texas SB8 is Terrible
1. It’s an End Run around Roe v. Wade
Whatever you think of abortion, and most Americans still support abortion rights for women in most cases, Roe is the law of the land. The intent of the law is reasonable access to abortion, a legal right of American women. This Texas law undermines the law, the constitution, the courts, and enforces the idea that we are not a nation of laws–we are a nation of tyrants, ruled over by whomever has power at a given point in time. That is what the Texas law means, at heart, and it should terrify every conservative who claims to care about constitutional and legal protections. If it doesn’t, you’re not a conservative; you’re just a petty authoritarian enjoying a moment of unearned power. And you should be ashamed of yourself.
2. No Exceptions for Rape or Incest
While the vast majority of Americans support abortion rights for women in cases of rape or incest in the first trimester, and smaller majorities support it even in the third trimester, this law makes no allowance for either violation. Abortion is prohibited after the detection of a fetal heartbeat, regardless of cause, unless the woman’s physical health is in danger (the medical exception).
“…a civil action under this section may not be brought by a person who impregnated the abortion patient through an act of rape, sexual assault, incest, or any other act…” – Text of Act
BTW, it’s interesting how they describe the raped woman in this case as an “abortion patient” rather than a human being. In other sections, they call her a “pregnant woman.” It’s almost like they can’t fact the fact that they’re forcing a human being to give birth to their rapist’s child. Weird.
So Texas has implemented a ban on abortions under conditions that most Americans disagree with, regardless of timing, which is hardly surprising. After all, these are the same people who defended marital rape and opposed the HPV vaccine for slutty women who deserved to get cancer for having sex anyway. One is tempted to think that rape is what bad women deserve for not being middle class white Republicans. Forcing poor women to carry the rapist’s child is simply justice, Texas style.
3. Many Women Don’t Know They’re Pregnant at Six Weeks
The law prohibits abortion after a fetal heartbeat is detected, or if no attempt is made to detect it, meaning any abortion after around six weeks. Many women don’t even know they’re pregnant at this point, meaning that for these women abortion is entirely and completely illegal now in the state of Texas (absent medical cause). I’m not going to spend a lot of time on this as it’s obviously the true intent of the bill, but you should understand what it really means. Texas is now forcing women to give birth to children, regardless of cause, even if rape or incest, and they think this somehow compatible with concepts of freedom, Democracy, and human rights. Which would be funny if it weren’t so tragic.
4. Legalized Vigilante Justice
The enforcement mechanism in this law is…anyone who files a claim, regardless of whether they would otherwise have legal standing. Every Texas resident now has legal standing. Everyone in Texas can sue anyone for providing or even thinking of providing abortion services (after fix weeks) or related information to anyone for any reason.
5. Unlimited Nuisance Lawsuits
While US conservatives are constantly urging tort reform, the Texas GOP appears to love nuisance lawsuits when it comes to things they don’t like–in this case, abortion. To avoid the constitutional issues of government-enforced abortion restrictions, Texas heartbeat bill instead uses private civil lawsuits as the enforcement mechanism.
“…the requirements of this subchapter shall be enforced exclusively through the private civil actions…” – Text of Act
Moreover, the construction of the bill encourages multiple concurrent and overlapping lawsuits from unlimited claimants. This means that dozens, hundreds, or thousands of people without any direct involvement in the case can file suit for every claim related to every abortion. You can scarcely think of anything more likely to clog the courts.
What this means: Texas has made it clear that using private civil action to support nuisance lawsuits is legally acceptable. So far, the US Supreme Court has not disagreed. This is likely to spread as an anti-abortion enforcement mechanism to other states. The result will cost taxpayers millions, and probably not decrease actual levels of abortion at all. It is the very definition of wasteful, intrusive government that conservatives claim to hate.
What might happen next: Any number of things, but I’d strongly suggest all blue states rapidly apply the same enforcement mechanism to all gun regulation. This would allow anyone in the state to file suit against any gun or ammunition manufacturer, wholesaler, retailer or user if the that use results in the stopping of an adult heartbeat. It’s less likely to be upheld by the Supreme Court due to the court’s current conservative bias, but at least it’ll force constant review of this enforcement mechanism.
And while we’re at it, how ’bout the same enforcement mechanism for all environmental laws? Wouldn’t it be great if anyone in the state could sue every corporation, business, contractor and anyone else involved in any environmental infraction…or who even thinks of an environmental infraction. How could anyone ever think that would be abused?
6. Unlimited Financial Damages – Not just $10,000
The Texas heartbeat law has been derided in the media for its potential imposition of $10,000 civil awards to claimants who sue abortion providers (and pretty much anyone else involved in the abortion). But this framing misses the true costs of this bill in three specific ways:
A. Three Types of Financial Damages & Awards
The act allows for three types of awards to claimants. These are (1) the $10,000 you’ve heard about (2) the legal costs you might have heard about and (3) unlimited penalties the judge can award for subjective deterrent purposes.
“If a claimant prevails in an action brought under this section, the court shall award...injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter…” – Text of Act
By itself, this means the liability of every defendant in each case is essentially infinite, subject only to the judgement of the court.
B. Unlimited Redundant Lawsuits
While the act does prohibit multiple $10,000 civil awards for the same infraction, it does not prevent overlapping, redundant awards of injunctive relief or legal fees from multiple lawsuits. Thus an unlimited number of claimants can be awarded unlimited relief for the same case. The way it’s written, you could just wait for someone else to win, and then refile the same case in the same court using the same evidence, repeatedly, for four years following the initial violation.
C. Unlimited Defendants per Lawsuit (or Infraction)
Because everyone involved in the chain of actions or decisions related to the abortion can be seen as “aiding and abetting” in that abortion (the term is not defined in the act or elsewhere), dozens or hundreds of vaguely related parties can be named as defendants in each suit (or in separate suits; it really doesn’t matter). The court can then award $10,000 and other penalties to the claimant for each defendant.
Taken together, the act turns claimants with no other legal standing into bounty hunters who can make as much money as they can logically rationalize without any legal or logical limitation. And they can use this to bankrupt any defendant of any size. Which, I assume, is the intent. And speaking of intent…
7. Damages for “Intent”
Not only can claimants receive unlimited damages from every defendant who “aids and abets” in any prohibited abortion, the same is true of every defendant who intended to aid and abet a woman who might or might not have intended to get an abortion, even if no abortion is ever performed.
“Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who…intends to engage in the conduct…” – Text of Act
Since I assume walking into Planned Parenthood is de facto intent, as if offering a woman gas money for the trip, as is anything else, this represents a massive financial assault on thought itself. Claimants are now fully deputized Texas thought police. George Orwell would be horrified, though probably not surprised. Big Brother now wears a virtual one-star badge, and he’s watching you.
8. Retroactively Removes Existing Protections
One of the most egregious overreaches in this bill has nothing to do with abortion per se; the act retroactively removes civil and legal protections from defendants that existed at the time of action if things change in the future in at least two specific ways:
A. You Can’t Rely on Current Law
According to this act, you can’t depend on existing law to protect you because, if a law is changed in the future, the protection provided is retroactively lost and you can thus be held liable for actions that were legally protected at the time.
“…a defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this subchapter…” – Text of Act
B. Affirmative defenses are retroactively invalidated
If either of two major abortion cases, Roe or Casey, is overturned, all prior related affirmative defenses won by defendants are immediately overturned and they are subject to civil liabilities previously denied.
“The affirmative defense under Subsection (b) is not available if the United States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833 (1992), regardless of whether the conduct on which the cause of action is based under Section 171.208 occurred before the Supreme Court overruled either of those decisions.” – Text of Act
So even if you act in full compliance with current law, and are thereby protected, any future changes to that law would make you retroactively liable. Not only is this absurdly dangerous, it also encourages claimants to file suits they know they’ll lose in anticipation of future legal challenges. And since “overruled” is not defined anywhere in the act, it’s entirely possible defendants could lose their legal protections (under Texas law) pretty much whenever Texas feels like it. Hurray for the rule of law.
9. Several Other Issues
There are so many, it’s hardly worth covering them all. Still, there are several other issues with the Texas act worthy of passing note:
A. lost Challenges to Any Abortion Law will cost you financially
If you file suit in Texas against any abortion law or related law at any level (state, city, county, etc.), and lose, you automatically owe the defendant all legal and attorney fees. The result is that only the rich can risk filing suit. This is the mirror opposite of the law as it pertains to claimants against abortion providers. In that case, only claimants can win legal fees. In this case, only defendants can.
“Notwithstanding any other law…any litigant seeking such relief in any state or federal court, is jointly and severally liable to pay the costs and attorney’s fees of the prevailing party.“ – Text of Act
What this means: Texas is endorsing anti-democratic, big government rule that cannot be challenged by anyone who isn’t rich. Liberals should immediately pass equivalent laws in other states. You sue any entity in California to oppose gun regulation, environmental laws, etc., and lose? You owe the state all of it’s legal and attorney fees. Enjoy.
B. It Forces Women & their doctors to Testify Against Themselves
I’m probably not phrasing this correctly, but this is how it works. The act requires doctors to submit a report too the state for every abortion. This report must include detailed information on the abortion and a count of prior abortions: “…the number of previous induced abortions of the patient…” (Text). This then tells the state that the physician and/or woman have been involved in prior abortions that themselves might be worth of claimant pursuit for compensation.
C. It Forces Woman to Call Fetus “Unborn Child”
In the consent form required by this law, in order to avoid a sonogram, the woman must acknowledge (as one possible condition) that she is aborting an unborn child:
“___ MY UNBORN CHILD [FETUS] HAS AN IRREVERSIBLE MEDICAL CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE DIAGNOSTIC PROCEDURES AND DOCUMENTED IN MY MEDICAL FILE.” – Text of Act
This may seem like a minor linguistic issue, but two thing are happening: first, she’s being forced to engage in an obviously upsetting thought process in order to get a legal medical procedure; second, she’s signing a document admitting she’s killing an unborn child, and thereby engaging in a legal farce that can later be used against other women.
D. it’s a Financial Lynching of Poor & Minority Women
This is probably obvious, but if you’re a poor woman in Texas and can’t afford to travel out of state to get an abortion that appears to be legal even under this law (but is risky given the retroactive issues), you are then faced with putting everyone you know or even thinks of helping you at risk of unlimited civil damages. It’s insane, racist, classist and simply inhumane.
E. It severs all parts of all abortion laws from all others
Basically, every abortion law in the state, at any level, is now comprised of unlimited and separately severable sections, making wholesale overturning of abortion laws legally complicated, expensive and borderline impossible.
F. It encourages even worse local laws
Combined with severability and liability protections, the act explicitly encourages local subdivisions to enact even more strict regulation:
“A statute may not be construed to restrict a political subdivision from regulating or prohibiting abortion in a manner that is at least as stringent as the laws of this state” – Text of Act
10. It’s a Cancer that Will Spread & Divide the Nation
Other red states will rapidly take up similar laws, and they will include equivalent egregious Big Brother government overreach, nuisance lawsuits, vigilantism, and more:
Florida State Senate President Wilton Simpson, a Republican, said in a statement Thursday it would be “worthwhile to take a look at the Texas law and see if there is more we can do here in Florida.” – Forbes
Women might soon be forced to travel outside of an entire region (the American South, Midwest, etc.) to get a legal abortion or related natal care. If this happens, the nation will divide as it hasn’t since the civil war. This is already happening, of course, but you can mark Sept 1, 2021 as the date this process accelerated, threatening to run out of control.
Other Texas Heartbeat Act Resources