Wide-ranging crackdown on abortion pills passes Texas Senate

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Anyone who manufactures, mails or delivers abortion pills to someone in Texas could be sued for $100,000 under a bill that preliminarily passed the Senate on Tuesday. The bill, considered the most wide-ranging crackdown on abortion-inducing drugs in the country, is expected to face a harder road in the House.

The bill expands on the private enforcement mechanism Texas used to outlaw most abortions in 2021 by allowing private lawsuits against anyone who mails or delivers abortion pills, including medication manufacturers. It also expands when and how people can sue for wrongful death after an abortion and goes after internet providers that host information on abortion pills and financial services that facilitate transactions.

After Texas banned abortion, many people turned to online pharmacies and out-of-state providers to obtain medication to terminate their pregnancies despite the bans. Republicans have tried to crack down on this practice through lawsuits and legislation, but this bill, Senate Bill 2880, would give the state a whole new set of tools to tackle the issue.

“These are the pills that are being mailed into Texas directly to women, often without instructions, certainly without doctors as before, and without follow-up care after,” bill author Sen. Bryan Hughes, a Republican from Mineola, said Tuesday. “This is illegal in Texas, but is taking place, and we've thus far not been able to protect women.”

For Sen. Nathan Johnson, a Dallas Democrat and lawyer, the bill is just as legally questionable as the behavior it purports to restrict. He said on the floor Tuesday that it’s a “flagrant, brazen transgression of the principles … on which this country and state was founded.”

Johnson questioned Hughes for almost 40 minutes, not on abortion, but on the bill’s impact on the state’s jurisprudence. The bill, as written, cannot be challenged in state court before it goes into effect, and would allow someone to sue a state court judge for $100,000 if they rule that the law is unconstitutional.

“If there is a judge who is having to defend herself or himself under this provision, they may not receive or obtain legal representation from the attorney general,” Johnson noted. “Now that's not very nice, is it?”

“Ignoring the law is not very nice when the Legislature specifically sets it out in a way that's clear and unequivocal,” Hughes retorted.

The bill is also designed to disincentivize lawyers from bringing constitutional challenges against the legislation by making them financially liable for legal fees for both sides in almost all cases.

“The intent is to be a very strong and unequivocal statement to those who would ship these pills into Texas that, don't do that,” Hughes said. “This is a strong statement about these pills and their harm to little babies and to women. It's strong.”

The bill also extends the statute of limitations for an abortion-related wrongful death case to six years, far longer than the typical two years for torts.

Johnson also raised the issue of the state’s pre-Roe statutes, which have been a roadblock in Hughes’ other big abortion bill, a bipartisan effort to clarify the state’s near-total abortion ban. The pre-Roe statutes, which date back to before the Civil War, allows criminal charges to be brought against someone who has an abortion, as well as anyone who “furnishes the means” for an abortion. Conservative lawmakers assert these laws are still in effect, while abortion advocates and Democrats point to court rulings that say they have been “repealed by implication.”

In the abortion clarifying bill, Senate Bill 31, Hughes agreed to an amendment saying the bill was neutral on the question of whether the laws were in effect or not. But when Johnson asked Hughes to add a similar amendment on this bill, he declined.

“This is not Senate Bill 31,” Hughes said.

“That's disturbing,” Johnson said, before moving onto discussing other provisions of the law.

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