The Bill

First, what does S.B. 8 even mean for Texas citizens? S.B. 8 bans all abortions after six weeks of pregnancy, with no exceptions for rape or incest. But contrary to what some might think, the bill does not achieve this through criminalizing abortion — this would be impossible, as it is a clear violation of Supreme Court cases Roe v. Wade and Planned Parenthood v. Casey, the two most prominent precedents on abortion rights in the United States. 

The landmark case Roe v. Wade determined a first trimester abortion for any reason was a constitionally protected right on the basis of the 14th Amendment’s due process clause, which guarantees a fundamental right to privacy. Planned Parenthood v. Casey followed, essentially reaffirming this right and also altering the trimester standard for analyzing restrictions. 

So if banning abortion is unconstitutional, how did S.B. 8 ever pass? Instead of criminalizing abortion — which would place enforcement upon state officials — S.B. passes that burden onto the citizens themselves, stating that any private citizen can sue someone who aided or abetted a woman obtaining an abortion, and earn a hefty bounty of at least $10,000 for each abortion and their legal fees comped. 

Notably, S.B. 8 stipulates that even if the defendant wins the case, “a court may not award costs or attorney’s fees… to a defendant in an action brought under this section.”

Stone explains that the law is intentionally written very broadly, where anyone who could be considered helping a woman seeking an abortion, e.g. paying for/reimbursing (through insurance or otherwise) is a potential defendant. Friends, family, counselors, doctors, clergymen, employees of abortion clinics, and even rideshare drivers could all be subject to litigation.

The bill, as Stone says, “creates a procedural Rube Goldberg machine”. Since government officials are taken out of the equation, the usual targets of lawsuits (the state of Texas, the governor, attorney general, etc.) can’t be sued. Furthermore, the state argues that since pregnant women themselves cannot be sued, they have no standing to challenge, giving them no agency.

This means the only people who can challenge constitutionality are the people who are sued themselves. But Section 171.208e of the bill eliminates several potential defenses, including:

“(2) a defendant’s belief that the requirements of this chapter are unconstitutional…

(3) 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…

(4) a defendant’s reliance on any state or federal court decision that is not binding on the court in which the action has been brought

(7) any claim that the enforcement… will violate the constitutional rights of third parties”

Ultimately, what all of this legal jargon boils down to is this: 

• Defendants are trapped in a Catch-22 — basically, only defendants can challenge constitutionality, but unconstitutionality isn’t an acceptable defense.
• If Roe v. Wade is later overturned by the Supreme Court, even if it had not been at the time of the defendant violating the bill, they can’t use it as a defense.
• Even if Roe isn’t overturned, the state doesn’t consider it “binding”, because they claim state laws banning abortion existed before Roe and were never repealed. “The legislature finds that the State of Texas never repealed… the state statutes enacted before the ruling in Roe v. Wade, that prohibit and criminalize abortion”
• Third parties, e.g. insurance companies and abortion rights groups, can’t invoke constitutional rights either. 

So defendants like individuals, abortion rights groups, insurance companies, etc. are the only ones that can challenge unconstitutionality, but Section 171.208e stipulates that none of them can invoke the Supreme Court decisions. The bill was clearly written with the express purpose of evading federal oversight.