Doctors who perform an abortion in Texas, anyone who furnishes the means for an abortion, or anyone who assists or causes an abortion, now face life in prison and a $100,000 fine. The change is due to a trigger law that went into effect once Roe v. Wade was overturned in Dobbs v. Jackson earlier this year.
The law criminalizes performing an abortion unless the pregnant patient is facing a “life threatening physical condition aggravated by, caused by, or arising from a pregnancy.”
The law does specifically prohibit prosecuting a pregnant patient who undergoes an abortion, in theory. The language of the law leaves the door open for a woman to be prosecuted for assisting in her own abortion. Ordering mail-order pills, for example, can lead to prosecution if a person takes them, has complications, and seeks medical care for those complications later, as technically the person taking the pills would be a person who caused or performed an abortion.
There are even state lawmakers who have threatened people for criminal charges for helping someone get an abortion out of state. Are you likely to be pulled over if you’re driving towards the state line with a pregnant woman? As of this writing, it’s impossible to tell.
What are the possible defenses?
One defense is that the $100,000 civil fine creates double jeopardy; traditionally, a non-remedial civil penalty closes down criminal prosecution. This defense isn’t a certain or sure one.
Certain groups are suing Texas Attorney General Ken Paxton and local prosecutors to prevent them from filing criminal charges. It is uncertain whether anyone will actually face criminal charges under this law.
SB 8 also allows any private citizen to sue anyone who “aids or abets” in an abortion after 6 weeks of pregnancy, which could mean anyone who has had an abortion, or anyone who drives someone to an abortion, or anyone who gives information about the abortion. This is a $10,000 civil penalty per lawsuit.
If you are arrested for performing an abortion, a better defense would be that there is medical proof that a life-threatening physical condition was present at the time the abortion was performed.
If you are facing criminal charges in regards to an abortion, call us. We don’t judge. We’re here to protect your constitutional rights and defend you against criminal charges regardless of your circumstances or politics.
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