An Indiana-based law firm representing the National Right to Life Committee (NRLC) is proposing a model state statute that expands criminal and civil liability for aiding and abetting an abortion. The proposal would create a vast litigation industry aimed primarily at health care providers and businesses, but also governmental entities, friends, family members, churches, and anyone else who might in some way provide counsel or support for a woman seeking an abortion.
We have previously reported on whether overturning Roe revives unrepealed criminal statutes applying to performing or aiding and abetting an illegal abortion. That issue is currently being litigated and may or not be resolved by the time the Legislature convenes next January. In any event, the NRLC model would impose the same criminal penalty on both acts, a second-degree felony (2 to 20 years in prison and $10,000 in Texas). Under the “old” Texas statute, Art. 1191, Penal Code, a person who performs an illegal abortion may be sent to prison for 2 to 5 years, but an aider and abetter is subject only to a fine ($100 to $1000). Should it come to Texas, the model would substantially raise the criminal stakes. The model also casts a wide net, defining “aiding and abetting” as:
- giving a pregnant woman (or someone seeking information on her behalf) information by telephone, internet, social media, or “any other medium of communication” about where and how to obtain an abortion whether self-administered or in a health care setting;
- hosting a website or providing access to the website that provides information on how to get an illegal abortion;
- providing abortion doula services;
- providing a referral to an illegal abortion provider; or
- providing a referral to an illegal abortion provider and being compensated for it.
The model creates three additional third-degree felonies (2 to 10 years and $10,000): trafficking in abortifacients, trafficking of minors, or using telehealth or online dispensers to obtain abortifacients. The first outlaws manufacturing, possessing, and distributing an abortifacient, defined as “mifepristone, misoprostol or any other chemical or drug dispenses with the intent of causing an abortion.” Presumably, this provision applies no matter where the prohibited activity occurs. The second bars recruiting, harboring, or transporting a pregnant minor for the purpose of procuring an illegal abortion or obtaining an abortifacient without parental consent. This offense explicitly applies no matter where the illegal abortion occurs. Prohibiting the use of telehealth or online dispensers, like trafficking in abortifacients, seems duplicative of aiding and abetting liability, but it does create the prospect of charging somebody with multiple offenses for the same conduct.
Finally, the model establishes a kind of RICO liability for those who engage “in a pattern of illegal abortion activity.” The definition of this term is so broad that pretty much anyone who assists a woman in obtaining an abortion can be sued by the attorney general for racketeering. The provision also protects employee whistleblowers who turn in their employer or fellow employees and purports to reach anyone with an economic interest in illegal abortion activity, such as clinics, pharmacies, and drug manufacturers (and, as we read it, even the Uber driver who gets paid to transport a woman to an abortion clinic). Violations in this section, including “tampering” with a whistleblower, are lower grade felonies.
It’s not clear to us precisely how the model drafters think these parts of the statute ought to be applied to an out-of-state abortion. The memo that accompanies the draft compares abortion providers to “organized crime” that will be “sheltered by radical Democrat prosecutors and other local Democrat officials” (more on this subject later). The memo also speaks to the necessity of laws designed to pursue “criminals” across state lines, lest the “abortion industry . . . exploit existing State laws on telehealth and the proximity of States with less protective laws to circumvent pro-life laws in a particular State.” So state lines—and presumably the whole concept of federalism, upon which SCOTUS itself based its decision in Dobbs—will be swept aside as states seek to extend their jurisdiction from sea to shining sea.
There is precedent for this type of extra-territorial liability: the Fugitive Slave Act of 1850. Section 7 of the Act imposed jail time (six months) and a criminal penalty (up to $1,000, a goodly amount in 1850) on anyone “who shall knowingly and willingly obstruct, hinder or prevent” the claimant of a fugitive slave from apprehending and returning the slave to where he or she escaped from. It further criminalizes attempting to rescue, assisting a fugitive slave to make an escape, or harboring or concealing a fugitive slave. A claimant could likewise recover a civil penalty of $1,000 for each fugitive slave helped by an aider and abetter. No doubt the act targeted abolitionist organizations that provided financial support and safe harbor for escaped slaves, but also churches and charitable entities, as well as individuals. Similarly, the proposed model targets abortion providers and organizations that support abortion rights, but it catches everyone else at the same time. The distinction between the Fugitive Slave Act and the NRLC’s approach, of course, is that the Act invoked federal authority to enable vigilantism, whereas the model does it with state power. Even so, the FSA delegated that authority to state courts, which were empowered to appoint commissioners to enforce the law. The commissioners, in turn, had plenary authority to enforce the law, up and including the power “to summon and call to their aid the bystanders, or posse comitatus.”
Similarly, the NRLC model has broad coverage and subjects everyone from abortion providers to moms and dads to felony prosecution. But how does the model envision enforcement where “radical” prosecutors might, in the normal exercise of prosecutorial discretion, decline to go after a church or a parent? By giving concurrent jurisdiction to the attorney general and, oddly in any county with a “first” or “second” class city, whatever those might be, or “an institution of higher learning with more than 10,000 students.” Again, not being privy to the thoughts of the drafters, we can only speculate on the policy rationale for this provision. We assume that since “radical Democrat prosecutors” might not take on prosecutions of local citizens for making a phone call or looking up information online, GOP attorneys general would have no such compunction? We’re not sure this is necessarily the case. They would, in any event, require a great deal more funding, staff, and legal authority than they have in many states, including Texas. Moreover, if the problem the model attempts to solve is selective enforcement, how will giving prosecutorial authority to an attorney general fix that? Doesn’t this provision just trade one view of prosecutorial discretion for another? And what about this bizarre provision giving the attorney general authority to prosecute offenders in cities and college towns with thousands of students? Seriously? Putting aside the transparently partisan purpose of doing something like that, can such a provision pass constitutional muster?
None of this is the way the criminal justice system is supposed to work. There’s a reason that we don’t, at least theoretically, deprive someone of their life, liberty, and property until their actions have been evaluated by a district or county attorney, a grand jury, a trial court judge, a petit jury (of one’s peers) and, if necessary, the appellate system. There’s also a reason that in 1876 Texas voters adopted Art. 5, Sec. 21, Texas Constitution, which vests prosecutorial power in locally-elected district and county attorneys—they didn’t want the state to have that kind of power. They likewise adopted Art. 4, Section 22, which withholds from the attorney general prosecutorial or quasi-judicial powers. It is at least debatable that voters would have to amend the Texas Constitution to do what the NRLC model legislation wants the attorney general to do. It seems to us that getting the voters to sign off on a policy shift of such magnitude might be the better part of valor in any event. As an organization that has long advocated for reforming the way Texas elects judges, we have always argued that Texans should have the last say about that. The same reasoning applies here, in whatever form a future Texas bill takes.
Among its many problematic aspects, the model clearly aims to create a parallel criminal justice system that centralizes authority at the state level and operates at a distance, if not entirely independently, from the restrictions on prosecutorial power inherent in the concept of an independent judicial system. Indeed, in order to do a proper job, the model will have to go a lot further. Even if the attorney general has prosecutorial power, it won’t do much good without the criminal courts necessary to empanel grand juries, issue warrants, arraign suspects, and conduct trials. As noted above, in Texas we are very proud of the fact that we elect judges. In other words, the same people elect them as they do district attorneys. So in order to work as its drafters intend, the model will have to provide for criminal courts selected by different people. In big cities and college towns—and in Texas we are talking primarily about Dallas, Houston, San Antonio, and Austin—new multi-county judicial districts with big GOP majorities will have to be created to ensure the election of the “right” judges to go along with the “right” prosecutor. We have heard that some legislators are already considering this approach for voting fraud cases, so no doubt it will serve just as well here.
But the creation of a parallel court system begs a lot of questions. For example, the model will also have to specify law enforcement responsibilities for executing warrants and, presumably, arresting and detaining alleged offenders. Will local police departments and sheriffs, who depend for their funding on locally elected city councils and county commissioners courts, do that? How will it work in cities and college towns, where the model assumes “radical” prosecutors will sit on their hands? Will the state have to establish an independent law enforcement agency, or perhaps a division of the attorney general’s office, charged with investigating “criminal” activity and bringing offenders to “justice”? Will local jails be called upon to house these people or will separate state facilities be provided (again, especially in cities and college towns)? Will grand jurors have to come from all over the expanded districts, or just the “right” parts of the district? Where will these cases be tried? And where will the petit jurors come from? How will these special courts interact with the family court system? How will these courts handle associated offenses that could very easily arise, such as rape and domestic abuse? Refer them to the courts designed to hear them or take jurisdiction themselves? And if you do that, who will prosecute them? A multi-county prosecuting attorney acting on behalf of the attorney general? Who will pay for it? And if we already have special courts for abortion-related crimes, why not extend the jurisdiction of those courts to abortion-related civil matters?
Perhaps the answer to many of these concerns is that the model will so thoroughly chill support for women seeking abortions that there simply won’t be that many prosecutions. Or perhaps one day Congress will enact a national abortion ban, despite that in Dobbs the Supreme Court stated that abortion regulation belongs at the state level (oops). But it does seem pretty clear, at least at the moment, that there will not be uniformity among the states with respect to such regulation. States run the gamut between barring almost all abortions and permitting almost all abortions. As long as avenues exist for legal abortions, people will tend to follow them if needs must. So to prevent that from happening, states that adopt the NRLC approach in some form or fashion will need the machinery to do it, and that machinery will have to attempt to block all the exits. And that brings us back to an immense build-up of resources at the state level with the mission of pursuing offenders wherever they may be found.
Thus far we have discussed only the criminal side and its possible ramifications. But the NRLC model, similar to SB 8, imposes equally robust civil liability under various theories.
- The model authorizes the attorney general or prosecuting attorney, the father of the unborn child, a maternal or paternal grandparent, and a parent or guardian of a pregnant minor for bring an action for a violation or attempted or threatened violation of the act. A prevailing plaintiff can obtain injunctive relief, compensatory damages (including non-economic damages for loss of parental care, custody and companionship of a child, and emotional distress), punitive damages (payable to non-profits that provide “services to pregnant women”), and, of course, costs and attorney’s fees. It should be noted that we did not see anything in the model that would prevent these claimants from suing the mother. Since the model authorizes injunctive relief restraining an attempted or threatened abortion, suing the mother would appear to be the best, and in some cases the only, way to accomplish that.
- The model creates a cause of action for the wrongful death of an unborn child. This provision authorizes the mother to bring the action if the illegal abortion proximately causes the death of the unborn child. Consequently, a woman could willingly obtain the abortion and then sue all of the parties involved, including the direct provider who performed the abortion, the manufacturer and distributor of the abortifacient, the employer (or anybody else) who paid for the travel, and anyone else who was part of the chain of causation. Again, a prevailing plaintiff can recover non-economic damages, punitive damages (which must be to pro-life organizations), and court costs and attorney’s fees. If the mother doesn’t sue, the father, parent or guardian of a pregnant minor, or the estate of the mother (if she died as a result of the abortion) can do so.
- As we discussed above, the model creates an offense for engaging in a pattern of illegal abortion activity. This would appear to a large extent to duplicate the existing offenses for performing or aiding and abetting an abortion. Presumably it would also result in civil liability for racketeers, since they are all either direct providers or aiders and abetters in the first instance.
- Although a person may be held liable for an abortion only one time, the model bars liability insurance and lifts any limitations on noneconomic damages. It also eliminates common law defenses, bars an award of costs and attorney’s fees to a person who successfully challenges the constitutionality of the act (conversely requiring the person challenging the law to pay the other side’s costs and fees), and purports to exclude any First Amendment claims or defenses. With respect to constitutional challenges, the model authorizes the attorney general to hire private lawyers for a cut of the attorney’s fees. To cap things off, the model suggests a six-year statute of limitations.
The model purports to create an affirmative defense on the narrow ground that the abortion was necessary “to prevent the death of the pregnant woman.” But even this single exception appears so difficult to fit into as to be largely illusory. First, the abortion must be performed by a physician with the informed consent of the woman or, if she is a minor, her parents. Second, performing an abortion on a suicidal woman in order to save her life doesn’t count. Third, the abortion has to be performed in the best manner possible to preserve the life of the unborn child. Again, risk of suicide or psychological or emotional disorders don’t cut it. Fourth, the abortion must be performed in a hospital with neonatal services for premature infants (beyond 20 weeks except in case of medical emergency). Fifth, another doctor has to be in the room to take over care of the unborn child (beyond 20 weeks except in case of medical emergency). Sixth, the reporting requirements are onerous, intrusive, and create additional criminal liability. These requirements erect a formidable barrier to a legal abortion and slipping up on any one of them could lead to a criminal conviction, loss of licensure, and civil liability.
The NRLC model presents a can of worms inside a can of worms inside a can of worms. Just as the drafters raise the specter of a “conspiracy” hatched by the “abortion industry” to evade anti-abortion statutes, the model creates a parallel industry, complete with its own criminal justice system, expansive new civil causes of action, and cadres of private lawyers and “non-profits” with financial incentives to feed the machine. Though constitutional limits on the ability of a state court to obtain personal jurisdiction over purely out-of-state actors may provide some check on the state’s desire to pursue offenders across state lines, we can expect a great deal of litigation over just how “minimum” a party’s contacts to the forum state have to be in order to avoid suit in Texas. And having turned this mess over to the states, SCOTUS may or may not be in any mood to wade into the morass of issues that laws like this one will engender.
In any event, we do know that anybody doing business in Texas will be on the hook for criminal and civil penalties, jail time, and virtually unlimited civil liability for any conduct that could be construed as aiding and abetting an abortion wherever that abortion might occur. Placing the prosecutorial discretion in the attorney general raises the legal and political stakes to an even higher level, particularly in view of the types of civil enforcement authority the attorney general already exercises over those same businesses. With talk in the Legislature about subjecting businesses to a wide range of criminal and civil liability based on their insurance benefits, employment policies, social engagement, and who knows what else.
*George E. Christian, TCJL’s research intern, provided research and drafting support for this article.