The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Clinic that overruled the nearly 50-year-old precedent of Roe v. Wade, which had recognized a constitutional right of a woman to terminate a pregnancy, opens the way for greater restrictions on abortions at the state level. Before the Dobbs decision was released, Texas had enacted the Texas Heartbeat Act, a law more commonly known as SB8, which requires physicians to test for a detectable fetal heartbeat in any pregnant woman seeking an abortion and prohibits physicians from performing the procedure if a fetal heartbeat is detected. SB8 does not provide for public enforcement through a criminal prosecution of physician or patient for violating these restrictions. Instead, SB8 authorizes “any person” to bring a civil action against any person who: (1) performs or induces an abortion in violation of the Act, or (2) engages in conduct that aids or abets the performance of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise “regardless of whether the person knew or should have known” that the abortion would be performed in violation of the Act, or (3) intends to engage in conduct prohibited by the other two provisions.
SB8 provides for injunctive relief if it would prevent the violation of the Act and statutory damages of not less than $10,000 for each abortion performed in violation, or for which there was aiding and abetting in the performance. Costs and attorney’s fees are available to a prevailing party. The Act severely limits possible defenses to this civil action.
Venue for the civil enforcement action can be the county where all or substantially all the events took place, the county of residence for any defendant, the county that is the principal place of business for any defendant that is not a natural person, or the county of residence of the claimant if a resident of Texas.
SB8 does not explicitly address at least two important aspects. There is no requirement that the claimant be a resident of the State of Texas or have some connection or relationship to the woman undergoing the termination of pregnancy procedure. Secondly, there is no provision requiring that the abortion or attempted or aided abortion take place in the State of Texas. There is no restriction to the borders of that state.
“Copycat” versions of the Texas civil enforcement legislation were enacted by Idaho on March 23 and by Oklahoma on May 3. In contrast to the other two statutes, the Idaho law excludes cases of rape and incest from the abortion ban.
Reaction to the groundswell of legislative action post-Dobbs to restrict abortion access on a state level has included traveling to locations where such restrictions have not been set in place. This includes a large number of not necessarily contiguous states and other countries such as Mexico and Canada. Financial support to Texas women for the travel and lodging expenses and costs of childcare are being provided by a variety of sources in Texas, including many prominent businesses. Those supportive efforts were met by Texas legislators warning companies that they may be banned from doing business in Texas.
The attempt at extraterritorial jurisdiction presents thorny questions, some of which are of constitutional dimension. Among these is the guarantee to American citizens to travel within the country. The right of a citizen of one state to travel into or through another state has been recognized as a federally guaranteed fundamental right since 1823. This was reinforced in cases interpreting the Fourteenth Amendment. These restrictive abortion laws invoke the legacy of the Fugitive Slave Act of 1850 pursuant to which a private citizen assisting a runaway slave seeking freedom was subject to penalties. At that time in our country’s history, a black person was not considered a citizen. Moreover, in connection with civil claims there is a threshold question regarding the due process limits on long-arm jurisdiction in this context.
These constitutional issues with a determination of the presence or need for state action, as well as the conflict-of-laws choices that will have to be made, will present challenging litigation to be undertaken in the coming years. But at present the restrictions, penalties, and bounties have an undeniable chilling effect on the exercise of a woman’s ability to make choices concerning her reproductive health and the willingness of healthcare providers to assist them because of prosecutions, civil money damages judgments, and professional licensure discipline resulting from enforcement of the laws of a state banning abortion.
That chilling effect is present not only in states which have not enacted restrictive abortion laws post-Dobbs but has also reached beyond our national borders. The July 22, 2022 issue of CMAJNews reported that the Canadian Medical Protective Association (CMPA) would not be providing legal assistance concerning criminal charges or civil actions against Canadian physicians providing abortion services to Americans, whether or not provided in Canada. The CMPA is a membership-based, not-for-profit organization providing legal representation, liability protection, and risk-management education for Canadian physicians. It is not an insurance company but rather a mutual defense organization. It was established by an Act of Parliament in 1913. The environment for abortion-related legal cases in the aftermath of Dobbs and the various state legislative restrictions is described as “uncharted territory.” The CMPA has counseled its membership to seek additional liability protection and independent legal counsel before providing abortion services.
The full ramifications of these state abortion laws and Dobbs remains to be worked out.