The statute tries to have a "severability" clause:How long until the first case under the new Texas law attacking protected speech as aiding and abetting abortion?
— OneHitPopehat (@Popehat) September 1, 2021
My guess: in September.
(g) This section may not be construed to impose liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court's interpretation of the Fourteenth Amendment of the United States Constitution, or by Section 8, Article I, Texas Constitution.
Of course, how the statute is construed is up to the courts, not the Texas Legislature. I don't know if that's meant to be a severability clause, or a "fuck you" clause. Either way, I don't think it helps the defense of this statute.
But before that, here's what the law provides for enforcement:
Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR
ABETTING VIOLATION. (a) Any person, other than an officer or
employee of a state or local governmental entity in this state, may
bring a civil action against any person who:
(1) performs or induces an abortion in violation of
this subchapter;
(2) knowingly engages in conduct that aids or abets
the performance or inducement of an abortion, including paying for
or reimbursing the costs of an abortion through insurance or
otherwise, if the abortion is performed or induced in violation of
this subchapter, regardless of whether the person knew or should
have known that the abortion would be performed or induced in
violation of this subchapter; or
(3) intends to engage in the conduct described by
Subdivision (1) or (2).
Subsection (3) there is already being called the "thought crime" provision. It sounds like a badly written conspiracy charge, but that language wouldn't allow a prosecution in criminal court. Whether it will in civil court is another matter. There are 1st and 14th Amendment issues raised by it, to start with. Whether the language I quoted above makes this portion severable is another matter.
This law does not establish a criminal penalty for abortions, which would be a head-on assault on Roe and it's progeny. It doesn't even allow the state, through the AG, to bring a civil suit for violation of this statute (that's laid out in more detail in 171.207). The grounds for suit, too, are either performing an abortion in violation of this statute, or "knowingly" engaging in conduct that aids or abets. So, by posting this to my blog, I could be "knowingly" aiding or abetting the "inducement" of an abortion by publicizing my opinion that abortions should be legal and safe, and this law is an ass.
Yeah, I know how big my audience is; I'm not worried. It would be a 1st Amendment case immediately. That's why you aren't likely to see it happen. In fact, I've violated (3) just by typing these words.
But I can't go to the Supreme Court until somebody sues me for my thoughts and/or deeds. Which is another interesting question. What if I'm posting this from Washington state? Or New Jersey? Can I still be sued? I don't see a geographical limitation in this statute:
Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:
Seems pretty plain to me, and pretty obvious the geographical limitation is on state and local government of Texas, not on individuals. Pretty serious 14th Amendment issue there. Which I think engulfs even (1) of this provision of the statute. No severability, in other words. This statute may ban abortions after 6 weeks; but if you toss out 171.208 on constitutional grounds other than the right to privacy, that ban is of no force or effect. In other words, I'm not sure you have to get to Roe to throw this turkey in the dustbin.
Of course, I could be wrong. And the sticking point will be getting some damned fool to sue somebody else for violation of 171.208 (2) or (3). That will be enough to take (1), down with the other two, IMHLO
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