The Texas Abortion Law: What the GOP Forgot

The new Texas law banning abortions after the detection of a fetal heartbeat raises too many questions to address in single blog. But let’s take a look at a few big ones that come to mind. Keep in mind that the new law permits anyone to sue any person who provides an abortion along with any person who aids or abets an abortion. The winning plaintiff will be entitled to recover legal fees plus damages in an amount up to $10,000.

  • Suppose Johnny and Sally are teenage lovers in Texas. Sally suspects she might be pregnant but she is fearful of the new Texas law. She therefore asks Johnny to drive her to an out-of-state doctor “just in case.” Johnny decides to drive his father’s car. Before they embark on their journey, Sally tells her best friend Simone what is happening, and Simone can’t help telling her mom all about it. Simone’s mom then passes the juicy gossip along to a pro-life watchdog group, which insists on suing Johnny and his father for “aiding and abetting” an abortion. In their defense against the lawsuit, they argue that there is no proof that an abortion actually occurred. Question: Can the Texas court subpoena Sally and/or the out-of-state doctor to force them to testify about the exact nature of the personal medical procedure the was performed in another state? (Note that neither Sally nor the doctor could claim a 5th Amendment privilege against self-incrimination because the Texas law cleverly establishes a civil rather than a criminal proceeding.)
  • Suppose Johnny and Sally are unaware that Sally is pregnant. One day, Sally starts experiencing severe abdominal pains, so Johnny rushes her to a hospital emergency room. There, a physician determines that Sally is most likely experiencing symptoms of a miscarriage but isn’t entirely sure. Fearful of how a Texas court might interpret a medical procedure, the physician tells Sally that there is nothing more that can be done. Question: Would the physician be liable for medical malpractice if Sally later suffers harm because of the physician’s refusal to act?
  • Suppose Sally’s parents learn about her pregnancy and decide to drive her to an abortion clinic out of state. Johnny joins them on the trip. A watchdog group learns about their trip and decides to sue all three. Question: Could the watchdog group file three separate actions—one each against Sally’s father, mother, and Johnny—for aiding and abetting an abortion, in order to increase the total damage award to $30,000, since three “abettors” were involved?

Note that the Texas law will force young women into court on multiple occasions if they were victims of rape or incest. Here’s why: Suppose a young rape victim—one who has already endured the trauma of the rape and the excruciating psychological distress of coming to terms with whether or not to report it—must now face the consequences of this new Texas law, which will require her to spend the next seven to eight months bearing her rapist’s child. If she decides that she cannot endure the agony of continuing that pregnancy, then her decision to end the pregnancy will force her into the public eye yet again. But this time, she will not be coming to court as an innocent victim in the prosecution against the rapist. This time she will be the defendant in a civil lawsuit brought by an anti-abortion watchdog group, one suing her because she is a young person who did not wish to be the mother of her rapist’s child. Imagine the publicity that sure to descend upon that poor person when this trial happens, which it certainly must.

More importantly, though, the victim of a Texas rape will now find herself facing an awful dilemma: “Do I report this rape to the police? Because, if I do, and if I discover that I am pregnant even a few hours after the magic six-week deadline, then I will be banned from seeking an abortion. Maybe it would be better if I keep quiet about the rape, leave the state, and have a secret abortion if necessary. Otherwise, if I open my mouth, the anti-abortion watchdogs will suspect that I might be pregnant and will be watching my every move, in which case I might be forced to bear the rapist’s child.”

These are only a few of the many, many nightmares that come to mind.

Texas Republicans have sparked Frankenstein’s monster to life. Spirited Reasoners are confident that the political backlash against the law will be more powerful than the monster.