The breaking news that SCOTX is considering a draft opinion overturning Roe v. Wade, while not terribly surprising in itself, has raised a question in our mind about the effect such a ruling would have on SB 8, legislation enacted last year to create a private cause of action against a person who assists a woman in obtaining an abortion. Our initial thought was that the decision would effectively moot the bill since Texas would join other states in reinstating the ban on abortion that existed until the Roe decision. In fact, Section 1 of SB 8 states that the Legislature has never expressly or implicitly repealed Texas law that prohibits and criminalizes abortion, so overturning Wade, according to principles of statutory construction, would give those laws effect without further ado.

If that is indeed the case, let’s take a look at what those laws are. In 1961 the Legislature enacted Article 1191 et seq., Penal Code, to make it a crime to assist another person in obtaining an abortion. Specifically, the statute stated:

If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years if it be done without her consent, the punishment shall be doubled. By ‘abortion’ is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused.

The statute provides further that any person who “furnishes the means of procuring an abortion knowing the purpose intended is an accomplice.” If “the means used fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce the result, and shall be fined not less than one hundred nor more than one thousand dollars.” Finally, if the mother dies as a result of an abortion or an abortion attempt, the offender is deemed to have committed murder.

Assuming that this dormant statute is revived by SCOTX’s decision, what are the consequences for SB 8? Let’s remind ourselves what SB 8 actually does. SB 8 is premised on the presence of a “fetal heartbeat.” If a physician detects a fetal heartbeat (and the bill requires the physician to perform a test to detect a heartbeat), no abortion may be performed or induced (except in a medical emergency, as defined in the bill). Significantly, we think, SB 8 expressly states that nothing in the bill may be construed to create a right to abortion prior to the detection of a fetal heartbeat. Section 1 of the bill, which points toward the revival of the dormant Penal Code provisions, is the baseline, not the pre-heartbeat period of the pregnancy. Even more emphatically, the bill bars any construction that “wholly or partly” repeals, expressly or by implication, any other statutes that regulate or prohibit abortion. § 171.206(b)(2), Health & Safety Code. In other words, SB 8 already assumes that abortion is a criminal act, so overturning Roe may simply reinforce the bill as it stands.

If that analysis is correct (and we’d be happy if it wasn’t), the civil liability created by the bill will remain in place beyond SCOTX’s decision. As you recall, SB 8 authorizes a person to bring a civil action against any person who: (1) performs or induces an abortion in violation of this subchapter; (2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation or this subchapter; or (3) intends to engage in the conduct described by Subdivision (1) or (2). § 171.208, Health & Safety Code. What does this mean exactly? Obviously, until a court of last resort tells us, we can’t be sure. But we can speculate within some reasonable parameters.

It may be argued that SB 8’s reach is limited to violations of “this subchapter,” that is, Chapter 171, Subchapter H, the civil cause of action created by the bill. Presumably, taking that line would limit the scope of the statute to people who “aid or abet” an abortion performed or induced without following the rules governing the fetal heartbeat. Consequently, a broader prohibition of abortion in a post-Roe Texas would dispense with the need for a fetal heartbeat threshold. In this reading the bill’s insistence that the old law automatically revives is only there to emphasize that SB 8 in no way creates a right to abortion. If that is the case, and it may be, SB 8 as currently written would require amendment to clarify that it applies to all abortions. Given the current state of play in the Legislature, this should not be a problem, so the argument about mootness may itself be rendered moot by the end of the next session of the Legislature.

There is no question that SB 8 will apply to any aiding or abetting that happened between the bill’s effective date last September 1 and the date Roe is overturned. And the statute has a four-year limitations period, so there’s plenty of time to hunt down those aiders and abetters and make them pay. At the same time, it’s not obvious that “this subchapter” really limits the scope of SB 8. If aiding and abetting an abortion once again becomes a criminal offense sometime this summer, we very much doubt that proponents of SB 8 will be willing to wait another 14 months or so for the necessary statutory tweaks to take effect. And they may not have to.

It seems to us not implausible that SB 8 in its current form could be construed to apply to any illegal abortion. In a world in which all abortions are illegal (except where the mother’s life is in danger, the only exception to the penal statute), that abortion will necessarily run afoul of SB 8 if it is performed in a state that permits abortion without a fetal heartbeat threshold. To our knowledge, none of the pro-Roe states prohibit abortion at anywhere close to the 6 weeks or so contemplated by SB 8. That puts them in violation of SB 8, which extends to abortions performed anywhere by anyone. Surely, Texas law cannot have that kind of extraterritorial reach. Perhaps not, but SB 8 would beg to differ. Nothing in the bill limits the cause of action to the conduct or omissions of anyone in Texas. The venue provision makes this explicit: notwithstanding any other law, venue is proper in the county of residence of the claimant if the claimant is a natural person residing in Texas. § 171.210, Health & Safety Code. In other words, the location of the harm is where the claimant is, not where the illegal abortion happened or the aider or abetter did whatever the aider or abetter is alleged to have done. Theoretically, SB 8 extends Texas’ jurisdiction to anywhere on the planet, not just the USA.

Regardless of whether the Legislature amends SB 8 or lets it run on its own, the statute is not going away. We think it’s more than likely that the demise of Roe will actually unleash lawsuits pursuant to SB 8 because the minimum threshold, which does create some fact issues, will be eliminated. Particularly as more businesses, nonprofit groups, and individual citizens provide assistance to employees to obtain abortions and, if necessary, to travel to get them, we will not doubt see a panoply of punitive responses, of which SB 8 will play a prominent part. In any event, courts in other states at some point in the near future will likely be confronted with what to do when their own citizens are sued in Texas by a Texas resident under a Texas statute. Closer to home, it’s only a matter of time—and probably not very much time—until SCOTX gets an appropriate case in the right procedural posture that it has to make a decision about.

If you’re a Texas business, especially one with a multi-state or multi-national presence, SB 8 has to give your legal counsel a bad case of heartburn. How in the world is it possible to navigate the bitter and vicious political discourse and policymaking around this issue? With SB 8 on the table, the day may have dawned when businesses can no longer quietly do their own thing while the divisive public debate over abortion rages outside the window. If the existence of Roe v. Wade could ignite the kind of passionate—and sometimes violent—politics we have seen on abortion, imagine what overturning the case will do. Word to the wise: we are in no way saying that the case should or should not be overturned. That’s a constitutional issue to be resolved by SCOTUS, and we express absolutely no opinion on it. But we are in the business of promoting public policy around the judiciary and civil justice system that makes Texas an attractive and jurisprudentially stable place to do business. Letting people use that system to sue business willy-nilly and without concrete injury is not conducive to those objectives. That’s what SB 8 does now and will likely do after Roe, whether we like it or not.

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