Despite the Injunction Against the Texas Abortion Ban, Clinics That Resume Their Usual Services Could Face 'Crippling Liability'

S.B. 8 allows lawsuits against people who perform prohibited abortions even if they relied on a court's determination that the law is unconstitutional.


After a federal judge in Austin blocked enforcement of the Texas abortion ban on Wednesday, half a dozen or so clinics resumed serving women seeking procedures prohibited by that law. But most clinics are not doing that yet. They are still worried about the litigation threat the law continues to pose—with good reason.

The problem is not just that the protection offered by U.S. District Judge Robert Pitman's preliminary injunction probably won't last, since the U.S. Court of Appeals for the 5th Circuit seems inclined to overrule him. Under the Texas law, which took effect at the beginning of September, people who perform or facilitate abortions after fetal cardiac activity can be detected, which typically happens around six weeks into a pregnancy, can be sued even if they do that while Pitman's injunction is still in effect.

The law, S.B. 8, allows "any person" to sue "any person" who performs a banned abortion, "aids or abets" it, or "intends" to do so. Lawsuits can be brought up to four years after the conduct on which they are based, and plaintiffs need not claim any personal injury or interest. S.B. 8 promises prevailing plaintiffs at least $10,000 in "statutory damages" per abortion, plus reimbursement of their legal expenses. Defendants, by contrast, cannot recover their legal fees even if they win.

In addition to creating that lopsided fee-shifting rule, S.B. 8 limits the defenses available to targets of the lawsuits it authorizes. Among other things, it says defendants cannot rely on a court's determination that the statute is unconstitutional if that ruling is later overturned—even if that did not happen until after the conduct that gave rise to the lawsuit. In other words, Texas clinics that perform prohibited abortions now cannot cite Pitman's ruling as a defense if the 5th Circuit overrules him, as seems likely.

Pitman, who was responding to a lawsuit by the Justice Department, found that "the United States is substantially likely to succeed on the merits of its claims." As he explained at length, S.B. 8 is clearly inconsistent with the Supreme Court's abortion precedents.

The law effectively bans the vast majority of abortions—something like nine out of 10. Its cutoff for legal abortions, about six weeks, is before many women even realize they are pregnant and long before "viability." S.B. 8 allows an exception for a "medical emergency" but not for rape, incest, or predictably lethal fetal defects.

"Indisputable, binding precedent holds that pre-viability bans on abortion are unconstitutional," Pitman noted. "Indeed, the Supreme Court has long held that 'a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.'" That's a quote from the Court's 1992 decision in Planned Parenthood v. Casey, which reaffirmed the "central holding" of Roe v. Wade, the 1973 ruling that said the 14th Amendment protects a woman's right to obtain an abortion.

"Seen in light of the nearly half-century of precedent in this line," Pitman said, "'the Act is a breathtaking act of defiance—of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas.'" That's a quote from Justice Sonia Sotomayor's dissent when the Court rejected a petition for an emergency injunction against S.B. 8 in Whole Woman's Health v. Jackson, another case challenging the law.

The five justices in the majority declined to intervene because of the "complex and novel antecedent procedural questions" raised by S.B. 8's unusual enforcement mechanism, which was designed to frustrate pre-enforcement challenges. But they noted that the petitioners had "raised serious questions regarding the constitutionality of the Texas law at issue," which is an understatement given what the Supreme Court has said about constitutional limits on abortion regulations. Pitman left no doubt that S.B. 8 cannot be reconciled with those precedents, saying "this Court will not sanction one more day of this offensive deprivation of such an important right."

For the time being, Pitman's injunction bars Texas courts from hearing lawsuits authorized by S.B. 8. But that will no longer be true if the 5th Circuit stays his injunction, as the state is asking it to do.

What happens then? If people are sued because of abortions performed before the 5th Circuit responds to the state's appeal, you might think, they could argue that they acted in good-faith reliance on a federal judge's conclusion that S.B. 8 is unconstitutional. But the law explicitly forecloses that possibility. The arguments that don't count as a defense against an S.B. 8 lawsuit include "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 that violates this subchapter."

As The New York Times notes, that means "clinics can be sued retroactively for up to four years for any abortions they provide while the measure is blocked." Jeffrey Hons, president and chief executive of Planned Parenthood South Texas, told the Times "we look forward to resuming abortion care the moment we sense the relief in place is durable."

Amy Hagstrom Miller is president of Whole Woman's Health, which operates four abortion clinics in Texas and was the lead plaintiff in the earlier lawsuit. "We have reopened our schedule to expand beyond that six-week limit in our Texas clinics," she told the Houston Chronicle yesterday. "In fact, last night, we reached out to some of the patients that we had on a waiting list to come in to have abortions today, folks whose pregnancies did have cardiac activity earlier in September, and we were able to see a few people as early as eight, nine this morning, right away."

Still, Hagstrom Miller said, the possibility of being sued for abortions performed while enforcement is blocked "gives people pause." As South Texas College of Law professor Josh Blackman noted in an interview with the Chronicle, the decisions clinics make now "could result in crippling liability."

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  1. >>a federal judge in Austin

    lol. your six-week murder push has been adorable.

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  2. This was explained in the first three articles on this law.

    1. Every day this law remains in place there are unwanted babies being born. My preference would be to put the entire Reason staff on this beat and cover it until the law is reversed.

      1. >>unwanted babies being born

        who's the decider on that?

        1. She can't drive to Oklahoma to terminate... who's going to watch her other 12 children?

      2. Unless you have a way to make a team of nine women have a baby in a month, this law won't affect the birth rate until winter.

  3. I wonder what other defenses could be barred by statute. Could a law bar you from raising an actual innocence defense? That would be weird.

    1. The Texas Libertarian party has an opportunity to restore the original 1972 women's rights plank before open season on officious male girl-bulliers next election. Backing the Equal Rights Amendment would also be a good move for any actual libertarians left within the soi-disant Texas LPs. The Klan will evidently not give up until girl-bullying, like other forms of slavery and lynching, is outlawed by Amendment.

  4. What's the latest news on the national vaccine mandate by that guy who replaced the Uber Authoritarian Trump?

    1. Announced in the media; no actual legal process yet in sight.
      But full enforcement by the corporate fascists.
      Firings continue, heroic front line workers of yesterday are terrorists today.
      True, documented facts are misinformation.
      Goebbels would be so proud.

      1. I was just curious. I know it's rude to hijack the horror of babies being born... but I was just wondering.

        1. I'm sure Pfizer could enroll the post 6 week mothers in a fetus drug trial.

          There, brought it back on subject.

  5. Abort mission!

  6. What’s the latest news on the national vaccine mandate by that guy who replaced the Uber Authoritarian Trump? https://pmrsc.com/

    1. First the Trumperjugend, now a Duterte boytoy...

  7. What’s the update on eviction moratorium since SCOTUS said that the CDC didn’t have that authority? I know New York has enacted one which is working it’s way through the courts. Atlanta also seems to have a city ordinance to that effect also.

  8. Be nice if the folks who seem so upset by SB8 would put their money on the line to pay for legal defense of abortion providers if they are sued, and finance appeals up to SCOTUS, where SB8 will probably be declared unconstitutional.

    1. You'd think that Planned Parenthood could make the Margaret Sanger Defense Fund. Your contribution is doubled if it stops a BIPOC from being born.

    2. The national LP's current cowardly women's plank could spread to other issues. Anarchist infiltrators want a plank that says "we dig that some people have strong feelings both ways on bank robbery, but we want the government to stay out of the matter entirely and let bank tellers, bounty hunters and gangland duke it out with live ammo." Nothing is more cowardly than a straddle designed to cave in to girl-bulliers and coathanger mutilation creeps.

  9. Does anyone else worry how a law like SB-8 might be applied in other areas of life? Today, it is TX. What do you suppose CA, NY, WA, or NJ will do when they pass laws similar to SB-8, in construction?

    I would love to know who thought this up, and anticipated all the legal curveballs.

    1. We had lawsuits against gun manufacturers.

    2. They did! The Fugitive Slave law passed, was challenged and stood because the Constitutional bar on antislavery laws had expired but propitiating language remained. The Supreme Court decision was tested again at Appomattox, Gettysburg, and finally down the Mississippi from Illinois and East across Georgia to Savannah. The word "bummer" entered the vernacular even before the Reconstruction Amendments and Comstock laws. Let's see how well these girl-bullying wankers deal with bummers this second time around.

    3. The ADA worked like this.

  10. 1973 Roe vs Wade collapses because 1989 DNA fingerprinting science proves that the fetus is a person.

    1. That must really burn the narcissistic psychopath feminists.

      They couldn’t have known that in a mere 16 years science would undo all their hard work bullying, politicking and lying to obtain a SCOTUS decision denying the unborn the inalienable right to life.

      All they can do now is deny proven reality.

    2. Bow down to the ?science?.. Worship your Gov-Gods for only their almighty Godliness will save us all from the pits of hell......

      ^Says every Power-Mad [WE] mob begging insanely for the usage of Gov-Guns against those people and a quick-fix for their pathetic egos.

      1. Bow down to reality yes because we are all bound by its rulles.

        Reality is defined with logic and science.

        Do you think you have the power to change reality? That’s the definition of delusional.

        1. YOUR ?reality? is your own imagination and even if it wasn't 'reality' isn't some B.S. excuse to point Gov-Guns at your neighbors and FORCE them to do as they're told.

          1. Not my reality but our shared reality.

            Can you provide even a single example of reality that applies to one but not another, as evidence of your claim?

            1. Just F-Off with your authoritarian Gov-Gun toting tendencies.
              It's none of UR business unless it's you who is pregnant - that is "our" reality. Oh; what's that - it's not your reality? There's your one example in a million in a half.

              1. Someone killing you is nobody’s business but between you and them eh?

                You need the gov guns to protect your murder advocating self.

                1. If I'm inside your body -- YOU F'EN BET IT IS between the two of us!

                  Geeeezzzz. Land Property get more respect than you want to give a persons body and top that off with a 30% development (60% of that supposedly ?person?) isn't even there yet. And somehow shooting an unwelcomed guest in your own home passes legal muster.

  11. Do you think if Michael Jackson could have gone back in time to when he was a kid, do you think he would have molested the child version of himself?

    1. While I never like to diffuse solid comedy, it's important to note that Michael Jackson never molested anyone, and that has been proven, reproven, and re-re-reproven to be lie told by malevolent gold diggers who were eviscerated in court multiple times, are on record repeatedly changing their statements, making claims tied to timelines that never happened, and then was perpetrated by a media that genetically latches on to any #MeToo story particle that floats through the ether.

      1. When was it bedtime at the Neverland ranch?
        When the big hand was on the little hand.

  12. You should have gone with 'Head-Crushing Liability'.

  13. Build your own Texas?

  14. I'm waiting for a plaintiff to find a way to sue in the most conservative court in Louisiana or Oklahoma, a court where the judge is waiting for an excuse to punish abortion. The order only applies to Texas officials. Out of state judges can apply Texas law to a Texas act if the defendant is subject to the court's jurisdiction. Imagine a Louisiana resident going to Texas and helping a woman get to the doctor.

    1. I saw a slender brunette doing exactly that. She answers to Kate, wears a Kurt and Goldie T-shirt and exercises 2A rights. I dunno who she is, but she's weird and she's pissed off.

      1. A murderer.

  15. For anyone who cares to translate Justice Sotomayor's dissent into Spanish, I have provided a translation into a sister language, Portuguese, at AMIGRA.US or https://tinyurl.com/yfzuwwro
    Argentina, home to the current Pontiff, just legislated its girl-bullying coathanger laws into the ashbin of history. Coahuila, Mexico's last medieval holdout, just followed suit and is eager for patients. Brazilians naturalized in Texas will gladly ditch those legislators. Texas will just have to man up to the fact that it's not 1873 anymore. Enjoy!

  16. The constitution doesn’t deny that the unborn are persons.

    As the reason Roe vs Wade did it collapses.

    1. The Constitution doesn't deny that F'en Fairy-Tales aren't Real for some people.

      No, you slap-stupid jack*ss.
      The unborn isn't a person just like a UN-constructed house isn't a house. But hey; fantasize all you want - just don't fantasize yourself into using Gov-Guns against your neighbors over your freak-en fantasy.

      1. The unborn are under construction as we all are from conception until the moment we die.

        Being a work in progress is what it means to be a person.

        1. And being a stupid stick means you're house?
          Okay man.... Whatever you want to believe....
          Just don't run around pointing Gov-Guns at others trying to force them to believe you're a house.

          1. You hide behind gov guns to protect your murder advocating self.

            1. OMG! I burned the stick that was suppose to build a house --- call in the bomb squad...

              That's not YOUR house you're building; That's [WE] foundations house!

  17. Say what you will, killing babies is going to be controversial for a long time.

    1. Ironically the only reason it's "controversial" is too many people can't keep their fat noses in their own business.

  18. You Pro-Life people are just as stupid as Lefties and their God-?Science?, Authoritarian Excuses, Fantasy Utopia's and etc...

    All packed up with the Indoctrination and Propaganda lefties use compulsively. The [WE] mob must use Gov-Guns to make our utopia real for EVERYONE....

    Sickening; This is exactly where the BOTH SIDES comes blazing together like a sunny day.

    1. Don't see how protecting an innocent life from being murdered is tyranny, but you do you.

      1. Would you use the same pathetic excuse to tell your Neighbors that their 90-year old grandpa who just had 60% of his body chopped off has to remain on life-support or they'd be murders...

        Because that's exactly what UR doing. Once upon a time situations like that was a FAMILY MATTER. But I guess the new cool kids cool-aid is..

        Sell off everyone's individual souls to the [WE] foundation. Because no-one owns their selves and certain no families have any precedence the members. Every personal life belongs to the [WE] foundation.

  19. S.B. 8 Among other things, it says defendants cannot rely on a court's determination that the statute is unconstitutional - But the law explicitly forecloses that possibility.

    That day Texas Republican's actually DID void the USA Constitution by 'fiat' State Law.... It's one thing to utterly ignore the USA Constitution (like Democrats) and actually *worse* to legally VOID it (like Pro-Life) Republican just did.

    [WE] gang mentality is what is tearing this nation apart. I had hope that my fellow Republicans weren't [WE] gang-members but instead Patriots fighting for Individual Liberty from the Nazi-Regime building here. NOPE, guess I guessed wrong.

  20. Aggressive Gov-Guns BAD
    Defensive Gov-Guns GOOD
    Sadly; The aggressive party on this subject is suppose to be the defensive one that likes to pretend they're defending their imaginary friends.

  21. The 14th amendment doesn’t exclude the unborn from personhood, in fact it actually defines the unborn as persons.

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.“

    Amateurishly taken out of context “all persons born or naturalized” has been misrepresented by SCOTUS and others to define persons as born alive,

    Clearly the 14th though is defining citizens as born or naturalized the unborn person does not need to be recognized as a separate citizen when they are within the woman.

    The 14th goes on to define all other persons other than born or naturalized citizens, meaning the unborn and unnatralized, non citizens as having equal protection to life, liberty and property.

    Taken in full context, the 14th defines the unborn as persons with the right to life.

    1. definition of 'person' = human *INDIVIDUAL*.

      Nice try toppling a word right on top of itself.
      Keep spreading that propaganda.

      1. DNA fingerprinting science proves that the fetus is an individual human being, a person.

        It is simply a dependent growing inside the mother who put it there through her own choice of voluntary behaviour.

        1. The fetus is an individual human being

          LMAO! Yet; again - Pro-Life wants to pass laws making it so the fetus CANNOT be made individual. Propaganda has warped your brain and basic paths of common-sense thought.

          Why YES Rob --- lets allow the fetus to be made 'individual' for craps sake. Snip, snip - there; its now "individual" and the fussing is settled.

          1. Killing someone isn’t “making them an individual”.

            You have clearly demonstrated your lunacy.

            1. So propose that fetuses be removed as a single member.
              And support exactly what your lunacy is saying.

              Then of course (AFTER the Roe v Wade Deadline in which State's can already ban abortion) you'd have make another Obumercare mandate for *free* life-support. Ironically; Your chance of surviving that thing you like to *PRETEND* is another person is exactly ZERO-CHANCE before the Roe v Wade deadline with the entire world of Medical Attention at it's whim. You know what they call anyone with that chance of survival? Dead-Already.

              Yet we both know that's not what you're fighting for. You want to FORCE pregnant women to reproduce by Gov-Gun threats out of some feeling of moral elite-ness and selfish pride. It makes you feel good to force people to do what you think is right even though it doesn't concern you or anyone-else AT-ALL.. That is the very mentality tyrants have.

    2. Haha, the 14th amendment is your God? I wonder what this would look like if you could be ass raped and have a fetus grow in you.

      1. I refer to science and logic to define what is real and true.

        This demonstrates that the fetus is a person collapsing roe vs wade.

        For those of you who think the 14th denies personhood to the unborn, I’ve demonstrated that you’re wrong.

        Rape has nothing to do with 99.9% of pregnancies.

    3. First, you merely suppose that the term "person" as used in the latter clauses of the 14th Amendment includes the unborn, but fail to offer any reason why that truly odd understanding is what the drafters of the Amendment intended.

      Second, in Roe v. Wade, the Court based its reading of the term "person" on its survey of the use of that term throughout the Constitution, and not just in the first clause of the 14th Amendment, as you seem to suppose.

      1. Nowhere does the constitution exclude the unborn from personhood.

        Roe vs Wade didn’t offer any evidence to the contrary, so their conclusion is without merit. I can’t refute what hasn’t been provided as evidence.

        Here’s your chance to provide the evidence RvW didn’t. Where does the constitution exclude the unborn from personhood? Fill your boots.

  22. A U.S. federal appeals court on Friday night allowed Texas to temporarily resume banning most abortions, just one day after clinics across the state began rushing to serve patients again for the first time since early September.

    Abortion providers in Texas had been bracing for the 5th U.S. Court of Appeals to act quickly, even as they booked new appointments and reopened their doors during a brief reprieve from the law known as Senate Bill 8, which bans abortions once cardiac activity is detected, usually around six weeks.

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