The Texas Senate on Tuesday evening tentatively approved a bill that would allow private citizens to sue anyone who manufactures, distributes, mails or provides abortion medication to or from Texas.
Successful plaintiffs would be awarded at least $100,000 in damages. Women taking abortion pills would not be eligible to be sued under the bill, nor would women who take them after miscarriages.
The Senate voted 17-9 to initially pass House Bill 7, which needs to pass a final vote before heading to Gov. Abbott’s desk. Similar legislation sailed through the Senate during this year’s regular legislative session, but died on the House floor.
Sen. Bryan Hughes, R-Mineola, said this bill is about protecting “little unborn babies” and their moms.
“Make no mistake, Big Pharma is taking advantage of loopholes in the law and mailing these bills directly to vulnerable women,” Hughes said.
Sen. Nathan Johnson, D-Dallas, who voted against the bill, suggested that the bill would target people who think about providing abortion pills without actually doing it.
“This appears to create a cause of action… allowing a person to bring an action against a person who intends to violate this law,” Johnson said.
Hughes responded by pointing out that the bill includes sanctions for filing frivolous or groundless pleadings.
Before the House floor vote in August, Rep. Jeff Leach, R-Allen, HB 7’s author, presented an amended version of the legislation that was adopted, which he said was created in collaboration with people from anti-abortion organizations as well as the Texas Medical Association and The Texas Hospital Association.
Leach noted HB 7 would shield Texas licensed hospitals, Texas licensed physicians in the state and anyone who manufactures or distributes the drugs for “legitimate medical reasons.” He added that the identities and personal health information of women who have had abortions or sought abortion pills would be protected.
Leach said his bill aims “to stop those who are selling, distributing and aiding the trafficking” of abortion medication into Texas from outside of the state.
House Democrats, including state Rep. Erin Zwiener of Driftwood, raised concerns on Thursday about the legislation allowing lawsuits to be brought forward against a person for intention to violate the state’s abortion ban, even if an abortion did not take place.
In an example posed by Zwiener, Leach conceded that a parent asking about getting medication mailed to Texas for an abortion for their daughter could potentially face a lawsuit and be held liable.
Responding to Democrats, Leach said “courts would determine when there is intent” and that he was confident that the U.S. Supreme Court would find the legislation constitutional.
State Rep. Joe Moody, D-El Paso, noted that part of a state law allowing private citizens to sue over abortions was previously declared unconstitutional by a state judge. However, that judge did not stop enforcement of the law.
Zwiener also raised concerns that the amended version of the bill could incentivize creating “sting operations” by allowing a person who brings a lawsuit and is unrelated to the person who sought or used abortion pills to be entitled to 10% of the damages in the lawsuit. Leach said he did not share that concern.
Leach’s bill removes any action from the Texas attorney general on behalf of a fetus, which is in Senate Bill 7, the upper chamber’s version of the legislation. But it does send all appeals of civil lawsuits through conservative-leaning 15th Court of Appeals, which has exclusive jurisdiction over cases involving the state or state agencies and challenges to state laws.
The American Civil Liberties Union of Texas noted HB 7 extends Texas’ abortion ban “far beyond state borders”.
“It will fuel fear among manufacturers and providers nationwide, while encouraging neighbors to police one another’s reproductive lives, further isolating pregnant Texans, and punishing the people who care for them,” Blair Wallace, policy and advocacy strategist on reproductive freedom at the ACLU of Texas, said in a statement after the bill’s initial passage.
Texas House Democratic Caucus and the Texas Women’s Health Caucus in a press release also critiqued HB 7 for including provisions “stating it cannot be challenged in Texas state courts” and that would prevent “defendants from recovering legal costs even when they win”, which they said “creates a system designed to bankrupt anyone who dares to help Texas women.”
“This bill was written specifically to allow extremist organizations to enrich themselves while terrorizing innocent Texas women,” Texas House Minority Leader Rep. Gene Wu, D-Houston, said in a statement.
The Texas Alliance for Life last month expressed support for revisions to HB 7, including those meant to protect women’s privacy and cap financial rewards for people who are not related to the person who had or sought an abortion.
“It is already illegal to traffic abortion drugs in Texas under the Human Life Protection Act, and our priority remains enforcement of that and other laws,” said Amy O’Donnell, communications director for Texas Alliance for Life. ”The revised version of HB 7 provides another tool against illegal abortion-by-mail while including vital protections for women.”
Opponents of the legislation have told lawmakers they fear the bill would place even more restrictions on Texans’ access to abortion medications that could be life-saving.
Last month, Shelley Hall, who had a miscarriage, told her story with grief heavy in her voice during a House committee hearing at the Capitol on the bill. Hall, like any excited expecting parent, already had a name picked out for her daughter and had her sonograms posted on her fridge.
But at Hall’s 10-week prenatal appointment last month, there wasn’t a heartbeat. As she coped with the “most devastating news of my life” she had to move quickly to remove leftover tissue in her cervix to prevent an infection and the first step, her doctor said, was taking abortion pills.
That’s when Hall said an already heartbreaking situation “turned into an even bigger nightmare,” because she had to prove to her pharmacy that she needed the pills for a miscarriage, not an abortion.
“On one of the hardest days of my life, it was on me to convince strangers that yes, my baby was gone,” Hall said, who hopes to become a mother someday soon.
The crowd of speakers in the committee room in August for the House’s hearing on the bill were sharply divided over the issue. Backers of the legislation say the proposal works to protect women. Susan Chapel with a pregnancy clinic in Harris and Montgomery counties said clients are coming in with concerns about abortion pills they’ve gotten through the mail “with no instructions, no labels and no contact information.”
Opponents of the bill, however, worry that the legislation would make it difficult for people who aren’t seeking elective abortions to access sometimes life-saving medications, making it difficult for medical professionals to treat them.
Leach has said the bill isn’t intended to change Texas’ law that already bans most abortions or to harm women who are at risk of dying from a pregnancy. It only works to give way for people to sue companies and people who give or mail abortion medications to Texans choosing an elective abortion.
There have been estimates that as many as 19,000 orders for abortion pills from Texans were placed after the initial abortion ban was enacted. After Texas banned abortion, many turned to online pharmacies and out-of-state providers to obtain medication to terminate their pregnancies despite the bans.
“HB 7 is the strongest proposed tool to stop this crisis,” said Ashley Leenerts, the legislative director for Texas Right to Life. “It provides a new avenue to undermine anti-state laws and empowers women who are tragically targets of the abortion industry to hold traffickers accountable.”
Several representatives of the Texas Medical Association previously pleaded to lawmakers to vote down the bill.
“This bill as filed runs the risk of having a chilling effect on our physician’s ability” to make the best health care decisions for patients, Dr. Zeke Silva, the chair of the association’s council on legislation.
Dr. Deborah Fuller, an OB-GYN in Dallas who also spoke on behalf of the Texas Medical Association pointed to the nation’s rising maternal mortality rates as a reason lawmakers should be discussing ways to expand maternal-related health care rather than restrict it.
The rates of pregnancy-related sepsis and deaths in Texas grew by 50% after the state banned abortion in 2021, according to an investigation by ProPublica.
Some of the bill’s sharpest critics, who refer to the measure as the “snitches get riches bill,” say Republicans’ consecutive attempts to target abortion pills this year does nothing more than continue an attack on reproductive health access for Texans who are already having to travel hundreds of miles for an abortion.
“It’s yet another way for abortion bans to allow the state to control people’s reproductive lives,” said Kamyon Conner, executive director of the Texas Equal Access Fund, a nonprofit abortion fund that pays for out-of-state reproductive care for Texans. “It makes people more fearful to reach out for abortion care.”
This article originally appeared in The Texas Tribune.
Disclosure: ACLU Texas, the Texas Hospital Association and Texas Medical Association have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
Terri Langford contributed to this report.