Today, Explained - The Texas abortion law

Episode Date: September 1, 2021

Texas didn't just make it almost impossible to get an abortion, the state made it easy to sue somebody who gets one after about six weeks of pregnancy — and anyone who helps. KUT reporter Ashley Lopez explains. Today’s show was produced by Victoria Chamberlin, with help from Amina Al-Sadi, Hady Mawajdeg, and Jillian Weinberger, edited by Matt Collette, engineered by Efim Shapiro, fact-checked by Laura Bullard, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained. Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Visit connectsontario.ca. At Today Explained, I'm Sean Ramos. When the clock struck midnight today in Texas, the state got a new abortion law. It could be the most expansive abortion legislation in effect today anywhere in the United States. The law doesn't just make it nearly impossible to get an abortion after about six weeks. It makes it really easy for just about anyone to sue just about anyone who helps someone get an abortion after about six weeks. We reached out to Ashley Lopez at KUT in Austin to explain. This is called, well, it's referred to as the Texas Heartbeat Act. It's one of these bills that are related to, like, fetal heartbeats, right?

So they prohibit abortions when a fetal heartbeat is detectable, which is about, it could be as early as five weeks, but around six weeks for the most part, into a pregnancy. And five to six weeks, just to be sure here, means that you could not even know you're pregnant, but have missed the deadline to get an abortion because you maybe don't want the pregnancy. Right. And, you know, there's a really small window of time between, for many people, when they find out they're pregnant and can get an abortion before this law, because, you know, in Texas, it's there's not a lot of providers for such a big state.

You have to travel far. There's a 24 hour window that you need to clear in order to get an abortion. You need to have a sonogram. There's just like a lot of hurdles that already exist in Texas. So the idea of like finding out you're pregnant in time to meet this new window is seemingly impossible. Actually, abortion providers say about 85% of people, this is like their estimate, about 85% of people who would otherwise be getting an abortion in Texas are not going to have access to clinics for the procedure now that this law is in effect. And does it make exceptions for things like incest or rape? No, it does not. The only exception in this is to save the life of the pregnant person.

So if you are a victim of rape or incest, there is no carve out in this bill for you. And as severe as that restriction is, and it is very severe, it isn't what really makes this law stand out. Is that fair? Yeah. I mean, the weirdest part about this law is that, you know, even though Texas lawmakers put this law into effect and created this restriction. When I hear a person's beating heart, I just don't hear their heart. I hear their soul speaking and I listen carefully. They're not asking the state to enforce it. Usually, and this is what other states do, this is what historically every, pretty much

every abortion ban has resulted in, is having a state enforce those new laws. But this one left it up to private citizens. Basically anyone, including people who don't live in Texas, can sue an abortion provider for providing someone an abortion after that six-week ban. It is up to basically anyone to enforce this law in Texas. And just to be clear here, if a pregnant person's neighbor finds out that they went to get an abortion after about six weeks, the neighbor could like sue the person who was working at the front desk of the clinic? There is nothing to stop them. And that neighbor is now

flushed 10,000 bucks and that person is fined and in civil court. Yeah. What exactly are the parameters of this? Does this sort of new way of enforcing an abortion law have restrictions? So it's really broad, which is why I think before this law went into effect, actually lawyers from across the state and judges raised a lot of concerns about this because this doesn't exist in practically any other kind of law. Like usually when states create restrictions, they want to enforce them. And, you know, usually when you sue someone, you have to prove they harmed you. Like in what situation and the one that you presented, like in what situation is the neighbor hurt by this woman having an abortion?

Like, this is outside of, like, how the law usually works. But, you know, there were some motivations for why they wrote it this way, which we can get into. But basically, anyone can sue someone in Texas for providing an abortion to someone. And the law goes even further to say that if you ate and abet, which is very vague language,

you can also be sued if that woman gets a procedure after six weeks. If a friend gives you a ride to get an abortion after around six weeks, is that aiding and abetting an abortion? I think no one can really give you this answer. This is also part of the concern. It's very vague. Presumably anyone who provides any kind of support, whether it's emotional, financial, like you mentioned, just a ride, just like logistical support, could be

subject to this. And in fact, I've talked to social workers like rape crisis counselors, for example. Rape crisis counselors have to walk women through their options, especially if they ask for it. And if some woman goes to get counseling and asks about her options and then eventually gets an abortion outside of a six-week window, that person could be liable for doing their job. I mean, it feels like this has to have parameters. If someone consults a teacher or a coach or a friend about whether or not they should get an abortion, could that be considered aiding and abetting? Pretty much. I mean, at least right now, there's no clarity on this. So everyone is kind of operating with the assumption that they could be liable here. I mean, this is untested. There is no law like this in the country. This kind of enforcement doesn't exist in other kinds of restrictions like this. So this is kind of a whole new world and no one really knows what to expect. And honestly,

it doesn't really matter because all it takes is for someone to just allege that you broke the law in order for you to have to deal with legal fees. It's civil court. It's going to have an effect on anyone who is targeted by this. And even if it's found that they did not do anything unlawful, they still are not going to recoup those costs in that time and the, frankly, stress of being sued for this. What's the story behind this very exceptional law? Who came up with it and who is promoting it? Well, anti-abortion groups in Texas.

I mean, that's not surprising. And, you know, in Texas for years now, the anti-abortion lobby has been very powerful. And I also want to thank all of the pro-life groups who joined with us here today, but also who worked tirelessly during the course of the session to make sure this bill got passed and for everything they do to cultivate a culture of life in Texas. A lot of the bills that are brought before lawmakers come from that world. And their whole impetus, and this is something they openly admit, which is that they were trying to figure out something that would be hard to stop in court. Because when usually an abortion restriction is passed,

abortion providers sue the state because they're the people who would be enforcing it. So it is, there's a more clear cut path to getting an injunction from a court, to getting a court to stop it from going into effect. But who do you sue now? It's been an open question that's been hard to figure out who, you know, no one has sued yet, you know, that we know of. And so who's the person who you stop from enforcing the law when really it's literally everyone that could do it? All the same, the Supreme Court had an opportunity to block this last night. What happened? Well, nothing really happened.

This went before Justice Alito because he is the justice that is assigned to Texas. So when there are emergency requests like the one that was filed here in Texas by abortion providers, he is the justice that is tasked to Texas. So when there are emergency requests, like the one that was filed here in Texas by abortion providers, he is the justice that is tasked to deal with it. And he didn't block it. Nothing happened. So as of midnight today, it's been the law in Texas. More with Ashley after this. Support for Today Explained comes from Ramp. Ramp is the corporate card and spend management software designed to help you save time and put money back in your pocket.

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Please play responsibly. If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Ashley, before this law went into effect at midnight this morning, what did abortion in Texas look like? Well, this was never an easy place to get an abortion.

You know, this is a Republican-led state. It's very conservative and notoriously or famously, depending who you ask, has passed a lot of abortion restrictions in the past decade or so. You know, we have the required sonogram laws, 24-hour waiting periods.

Women seeking an abortion will have now to receive a sonogram 24 hours before the procedure is ever done. They can decide not to look at it or listen to hear everything, hear the heartbeat, for example, but they must hear about fetus development. There was just a ruling on a limit on what procedures abortion providers can use in second trimesters.

Dilation and evacuation, or D&E, is the standard abortion procedure used after 15 weeks of pregnancy. The newly reinstated law forbids D&E abortions unless an additional procedure is first performed to bring about the demise of the fetus, which a dissenting judge wrote would force women into, quote, painful, invasive, expensive treatments that pose significantly elevated risks to the woman's health. The most common method for a second trimester abortion

is now illegal here. So this was always a place with a lot of abortion restrictions. Just this is on a whole new level. So what does this change for pregnant people? Is the biggest change the sort of enforcement aspect, the fact that your neighbor or someone in Maine could be suing you for getting an abortion? Well, I mean, it's just going to be a lot harder to get one in general because the clinics are not going to violate the law. They don't want to be subject to mounting fines for providing an abortion after six weeks. So your options are, you know, their online

abortion pill distribution sites, right? Like that is a service for now in Texas. I know anti-abortion activists have been trying to get that tamp down here in Texas. They told me like that's going to be the next thing in their bullseye. Or you're going to have to drive out of state. And if you've ever lived in Texas or driven through Texas, that is no small feat, depending where you live. It could be hours and hours and hours away for you to get an abortion. What are abortion clinics in the state doing? Are they just closing up shop? Are they living in fear now? Well, they're not closing up shop. They can still provide abortions if someone comes in early enough before there's a fetal heartbeat. It's just so small. That's such a small percentage of people who get an abortion

because most people don't figure out they're pregnant until after that five or six week period. But many abortion providers, including Planned Parenthood, provide other services, cancer screenings, stuff like that, birth control. So that work is still there. But in the meantime, abortion procedures are going to be hard to come by in the state. Have you spoken to anyone who works at an abortion clinic in Texas? Are they scared? Yeah, I've talked to a lot of people, mostly on the administrative level. They're really scared for their staff. Because remember, it's not just the institution that's going to be sued. It usually happens. It's the actual providers, the staff. If you're a nurse

in a clinic, and I mean, it could be anything, right? Anybody who is involved in someone getting an abortion outside of six weeks, they're subject to this. And all it takes is an allegation, right? Someone can just allege that this nurse helped someone get an abortion after six weeks. They're subject to this. And all it takes is an allegation, right? Someone can just allege that this nurse helped someone get an abortion after six weeks. And even if they're wrong, that person has to deal with a lawsuit and the costs that come with that. And again, the stress that comes with that. So administrators at these clinics are just like really scared for their staff. They feel very targeted. And of course, they feel really sad for the patients that they could be helping.

For them, this is why they do this work, is to help people who are in a tough time. And so they feel like they're not able to do what they're there to do. So an administrator who hands someone who wants an abortion at a clinic a clipboard could be liable to a lawsuit and end up paying a fine of what? $10,000 is what people are potentially liable for. So and that is the low point because you could be required to pay like attorney's fees for both sides. And, you know, this is what abortion providers are actually really concerned about because they feel like this could become a cottage industry for folks, right?

Like there's no cost to you alleging and suing people really, unless, especially if you get legal help from like an anti-abortion group, but it could be easily abused is their fear. And it's not just people who work at abortion clinics that could be caught in the crosshairs of this. You know, I talked to folks who are, you know, social workers, people who specifically rape crisis counselors who provide women support if they have been sexually assaulted. And part of their job is to field questions about people's options after something like that happens. And stuff like abortion options comes up. I talked to a woman, Monica Faulkner. She's been a social worker here in Texas for 20 years

and she's worked a lot with rape victims. And she said, I know for myself, ethically as a social worker, my code of ethics would require me to give a client information that they requested. She feels like it is her ethical duty to field those questions regardless of the law. And I know that my fellow social workers

will also do that. Like it would be reckless and almost a disturbance to the people that she's supposed to serve if she shields herself from answering those questions in the event that that person eventually gets an abortion. So we're putting ourselves at risk in doing so. I mean, this feels like an obvious question, but I'm going to ask it anyway.

Was this meant to be a direct challenge to Roe v. Wade? Is that the intention here? So I actually talked to John Segal. He's the legislative director for Texas Right to Life. He's a key figure when bills like this get drafted in the Texas legislature. And to him, this is not what this is. And he told me this. He believes that there are other challenges that were headed to the Supreme Court, like the Mississippi ban, a bunch of other laws like this ban that were destined for the Supreme Court because they were following the regular

sort of legal framework that everyone goes through, right? Like sue the state that's going to enforce the ban. It goes to a district level court and then an appeals court, and then it heads to the Supreme Court. So, you know, at least anti-abortion groups here say they didn't feel they even need to directly affect Roe v. Wade. What they saw this as, as a way to make sure that this law did not get stopped in court, that the courts were all the way skirted from getting involved in this process, because they feel because Roe v. Wade is still the law, that it would be stopped from being enforced. And they were right, because look, other states were banned from enforcing this law. And in Texas right now, it is law and it is in full effect because it has been a really strange

legal journey for this because it was written to be a strange legal journey for anyone who wanted to stop it. So what comes next? Is this going to get challenged? Can it get challenged now the Supreme Court hasn't done anything? Might the Supreme Court do something or what? I mean, Justice Alito can do whatever he wants. He can literally weigh in and issue the emergency injunction whenever he wants, if he wants to. The other venue here, the other, I guess, way this could work is someone gets an abortion after six weeks, someone sues, and then that person who is sued can sue for damages and fight the constitutionality

of this law from the perspective of someone who was directly harmed by the law. So it might come down to someone going out there and trying to get an abortion who has to then fight this law themselves all the way up to the Supreme Court. Yeah, I think it's almost inevitable that someone will be sued. And if that person is sued, there are people waiting in the wings to sue back. Ashley, thank you so much. Thank you. Ashley Lopez is a reporter at KUT. That's Public Radio in Austin, Texas. You can find and support her work at KUT.org.

Today's show was produced by Victoria Chamberlain with help from Amina Alsadi, Hadi Mawagdi, Matthew Collette, and Jillian Weinberger. Thoughts, questions, comments, concerns,

send an email to todayexplainedatvox.com. More tomorrow. Thank you.