A young woman and her mother are nervously driving through the night when they’re pulled over by law enforcement. Flashlights in their faces, the women are questioned about whether they’re heading for the border and whether the young woman might be pregnant, before being pulled out of the car.
This political ad, released ahead of the 2020 election, speculated about what a post-Roe v. Wade future might look like as Republican states sought to crack down on abortion ban violators.
In the weeks since the U.S. Supreme Court overturned the constitutional protection for abortion, the ad went viral, contributing to growing fears of state border checkpoints and widespread data mining to track menstruation and pregnancy outcomes.
“But I think the reality is, the vast majority of these criminal cases are going to begin in kind of more mundane and common ways,” said Emma Roth, staff attorney at National Advocates for Pregnant Women.
Despite fears of unconstitutional legal gambits and Big Brother-style tracking, lawyers and experts predict that much of what is expected to unfold over the coming months and years will look very familiar.
More than 1,700 people have faced criminal charges over pregnancy outcomes since 1973, according to NAPW. Like a woman charged with murder for a “self-induced abortion” in Starr County earlier this year, many pregnant people who get caught up in the criminal justice system are reported to law enforcement by health care workers. Like a woman in Mississippi who was charged with murder after a stillbirth, many people willingly turn over digital records that are used to incriminate them.
Reproductive justice lawyers say they are focused not on preparing for a potential dystopian future like the one presented in the commercial, but on educating health care providers, lawyers and pregnant people about what they can do to protect themselves right now — with the rights they still have available to them.
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Advocates worry that people who self-manage an abortion — or experience a miscarriage that resembles an abortion — may not seek out necessary medical assistance if they fear being prosecuted.
Although Texas’ abortion law specifically exempts pregnant patients, the Starr County case exemplifies the ways they can still get caught up in the system.
“We know that prosecutors are going to try to criminally punish people, irrespective of what the law says,” said Farah Diaz-Tello, senior counsel at If/When/How, a reproductive justice legal nonprofit, in an interview last month. “For us to be able to resist this criminalization, it is important to note that it is unlawful criminalization. Merely being an act of a prosecutor doesn’t mean that it’s the law.”
Pregnant people may also worry about anyone who, in the language of the law, “aided and abetted” or helped “furnish the means” for an abortion — friends who drove them over state lines, someone who mailed them pills, a doctor who provided an ultrasound to ensure they completed the abortion.
“People are living in constant fear [because] they wouldn’t want to do anything that would jeopardize the liberty of their loved ones or their medical providers, and as a result, may avoid necessary health care,” Roth said.
Like I said, that’s a feature and not a bug. Any bad thing that happens to any of these women, they’ll be blamed for it by the forced-birth crowd. And while much of what is to come will be familiar, or at least a callback to fifty years ago, I fully expect there to be new and more horrible things to come as well. We didn’t have pills that could be ordered over the Internet and sent by mail in the 60s, and we didn’t have the myriad ways we have now to dig into people’s personal lives to get information on them. All that, and we haven’t even seen any SB8 vigilante bounty hunter lawsuits filed yet.
HEARTBEAT LITIGATION ONGOING, SOME STALLED
Re: “we haven’t even seen any SB8 vigilante bounty hunter lawsuits filed yet.”
It depends on what you consider a “bounty hunter lawsuit”. Most broadly conceived, all personal injury lawyers and their clients are bounty hunters because they enforce the state’s general tort law through private lawsuits (and the attorneys take a cut of the proceeds, typically in the 30%-40% range, so they are incentivized).
More fundamentally, however, the concept is not apt in relation to civil lawsuits because such lawsuits require – by definition – a petitioning of a public court and the peaceful resolution of the dispute by such court under the governing rules and substantive law. Bounty hunting, in the traditional sense, involves (1) use of force/violence to effect an apprehension or worse, and (2) coercive action taken *outside* of court. Service of process in civil lawsuits is routine (think debt collection suits) and merely involves a process server or constable handing the defendant the lawsuit papers used to initiate the legal action in court (citation and original petition). No force is involved and no one is taken into custody or otherwise restrained in their liberty. As for the latter, Texas Right to Life has been restrained (by TRO, then Temporary Injunction) on motion of pro-abortion plaintiffs rather than the other way round. But that, too, was involved in-court action by judges, and if they are charged with violating it, they will be entitled to due process and appellate review by mandamus or habeas corpus if warranted.
That said, Justice Sotomayor used the term to label S.B.8 claimants, so it would appear to be fair game for everyone else, including Kuff. See In re Whole Woman’s Health et al, No. 21-962, 142 S.Ct. 701 (2022)(Sotomayor, J, dissenting) (“It has been over four months since Texas Senate Bill 8 (S. B. 8) took effect. The law immediately devastated access to abortion care in Texas through a complicated private-bounty-hunter scheme that violates nearly 50 years of this Court’s precedents.”). Those precedents, of course, are now history.
As for pending S.B.8 cases more broadly defined, there are more than a dozen, though only 2 of them are S.B.8 enforcement suits proper (i.e. suits seeking statutory damages for violations of S.B.8), both in Bexar County. One of those has been on file since September 2021 with no further activity (making it eligible for dismissal for want of prosecution), while the plaintiff in the other one (filed in 2022) has been enjoined by a federal judge in his home state from proceeding with it. He currently faces contempt of court for submitting additional filings in his state-court action that allegedly constitute a violation of the anti-suit injunction. He argues that the injunction against S.B.8 litigation is invalid following the SCOTUS decision in Dobbs. There is no ruling yet concerning the contempt charge.
As for the other S.B.8-related cases, including a dozen-or-so pre-suit challenges to S.B.8 under state law by abortion providers and allies, they are either already consolidated by the Multi-District Litigation Panel or may soon be. The original batch of cases (assigned to Judge Peeples) is currently stalled because an interlocutory appeal is pending that resulted in an automatic stay of further pre-trial activity while the court of appeals in Austin considers the issues raised in the appeal.
A motion is currently pending to expand the scope of the pending MDL dubbed “IN RE TEXAS HEARTBEAT ACT LITIGATION” to include the pre-suit deposition petitions filed by Jonathan Mitchell and any actual S.B.8 enforcement actions. See docket here: https://search.txcourts.gov/Case.aspx?cn=21-0782&coa=cossup
Last entry: “Motion to Transfer to MDL Pretrial Court, Expand Scope of MDL Litigation, and Request for Emergency Stay of Trial Court Proceedings filed on behalf of The Lilith Fund Reproductive Equity and North Texas Equal Access Fund by attorney Alexandra Wilson Albright.” (July 27, 2022).