Texas lawmakers propose abortion pill bill that can’t be challenged in state courts

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In 2021, when Texas passed an abortion ban enforced through private lawsuits, U.S. Supreme Court Justice Elena Kagan sarcastically derided the architects of the law as “some geniuses” who’d found the “chink in the armor” to sidestep Roe v. Wade.

Four years later, those same folks are back with a new play to restrict the flow of abortion-inducing drugs into the state and a fresh set of never-before-seen legal tools that experts say would undermine the balance of power in the state.

Senate Bill 2880, which passed the Senate last week, allows anyone who manufactures, distributes, mails, prescribes or provides an abortion-inducing drug to be sued for up to $100,000. It expands the wrongful death statute to encourage family members, especially men who believe their partner had an abortion, to sue up to six years after the event, and empowers the Texas Attorney General to bring lawsuits on behalf of “unborn children of residents of this state.”

The bill has been referred to a House committee, where a companion bill faced significant pushback earlier this month.

That the Texas Senate passed a bill to crack down on abortion pills isn’t surprising. But the protections written into this bill, which says the law cannot be challenged as unconstitutional in state court, could have ripple effects far beyond the question of abortion access.

“This is absolutely unprecedented, what they’re trying to do here,” Joanna Grossman, a law professor at Southern Methodist University Dedman School of Law, said. “I haven’t reviewed every law in Texas, but I think it’s safe to say this has never been tried.”

No state court challenges

The bill as approved by the Senate contains many provisions that legal experts say might spark a lawsuit challenging it on constitutional grounds. But the bill also says it cannot be challenged in state court, an “outlandish, shocking” proposition, said Dallas attorney Charles Siegel.

“I’ve never seen anything like that in any statute of any kind, anywhere,” said Siegel, a partner at Waters, Kraus, Paul and Siegel. “It’s just crazy.”

The bill says no state judge has jurisdiction to rule on its constitutionality, and if they were to do it anyway, they can be personally sued for $100,000. The judge would waive their usual protections of governmental immunity and could not call on the Office of the Attorney General to defend them in court.

Sen. Bryan Hughes, a Republican from Mineola and author of the bill, said the law could still be challenged in federal court, but removing the state judiciary’s oversight of this law is within the Legislature’s purview.

“We make the rules,” he said on the floor of the Senate. “We set the jurisdiction.”

Sen. Nathan Johnson, a Dallas Democrat, called it a “flagrant, brazen transgression of the principle of separation of powers on which this country and state was founded.”

“It just seems to me that we’re holding the judicial branch of government in contempt if we’re going to tell them they can’t review our work,” Johnson said to Hughes. “And I’m surprised you’re not equally troubled by this.”

Legal experts said it’s baffling to argue the Legislature could pass a law that is unconstitutional and then prevent the courts from declaring it so. If that were an option, lawmakers would inevitably write that clause into every bill and do whatever they wanted without the checks and balances inherent to our system.

“Could the Legislature now pass a law saying every time you vote for a Republican, it counts twice, and if you vote for a Democratic candidate, it counts once, and then put in these provisions that make it impossible to challenge?” Siegel said.

Siegel said it’s possible a judge who feels this law is unconstitutional would hear that case, even if it meant getting sued, and he said many firms, including his, would likely stand up to defend them in deference to the rule of law.

“But then some other judge hears the lawsuit against the first judge?” he asked. “It’s just impossible to imagine. We’ve never had a system of law under which people get to sue judges for money over their rulings.”

The bill also proposes financially disincentivizing anyone from challenging the law in court, including an unusual provision to hold lawyers who bring these challenges liable for costs and fees, rather than the client.

While the abortion aspects of this bill are what gets the most attention, Siegel said it’s the changes to long-accepted civil procedure that’s most alarming to him.

“It’s just frightening as hell that anybody, any elected representative, would put these provisions in any kind of bill and that they would pass one of our chambers,” he said. “Any first year law student would recoil at this and think, ‘they can't do that.’”

Expanding the “bounty hunter” provision

Under this bill, someone who “manufactures, distributes, mails, prescribes or provides” abortion-inducing drugs can be sued for $100,000. There is an exception for medications that are used for medically necessary abortions, and exempts the person who has the abortion from being sued.

Hughes did not respond to a request for comment. But speaking to the Senate, he said the bill targets pharmaceutical companies that aren’t doing enough to ensure their products aren’t being sent into states that have banned abortion. The bill allows for a lawsuit even if the abortion pills are not identified as the “actual or proximate cause of death,” and says a company that manufactures abortion pills can be held liable, whether or not it’s determined that their medication was used in the abortion.

But by expanding the private lawsuit mechanism and the wrongful death statute, legal experts say the bill is more likely to be used against individuals than corporations. Even without the promise of a $100,000 payout, there have already been wrongful death lawsuits filed against women who helped a friend get an abortion, and a legal challenge against a New York doctor who allegedly ships medications into Texas.

Sen. Sarah Eckhardt, an Austin Democrat, condemned the bill to the Senate as a “bounty hunter bonanza.” John Seago, the president of Texas Right to Life, tweeted that that “sounds like a good time. Sign me up!”

Seago’s group has spoken publicly about their plans to recruit plaintiffs, especially men whose partners had abortions without their knowledge. The bill says a lawsuit can be brought by the “biological father of an unborn child” even if the mother doesn’t want to bring the suit or she consented to the abortion. There is an exception if the pregnancy was conceived through sexual assault, although it does not specify how that would work in practice.

Building on the protections for plaintiffs built into the 2021 abortion ban, SB 2880 ensures someone who brings a lawsuit under this bill would have extensive opportunities to recover their attorneys fees and costs. It also makes it harder to transfer where the case is being heard.

The bill also makes it harder for someone who sues under this provision to be countersued. Some blue state “shield laws” for abortion providers specifically allow someone who is sued by another state to counterclaim for multiple times the cost of the suit they’re facing. But under this bill, filing a countersuit could make them liable for another $100,000.

“It feels like children squabbling,” said Liz Sepper, a law professor at the University of Texas at Austin. “I sue you to infinity, you sue me to infinity plus one.”

Will it work? 

By adding all of these new tools and legal mechanisms, the bill hopes to stem the tide of abortion pills that has flowed, largely unchecked, into Texas since the state banned abortion.

Whether it will work is another question.

“If they could have built a wall around the state in some way that would have stopped abortion pills, they would have done it,” Grossman said.

These pills come from out-of-state providers, international pharmacies and mysterious internet sources. They’re carried over the U.S.-Mexico border, mailed in innocuous packages and quietly distributed through in-person whisper networks.

Texas’ ability to stop each of those avenues depends on unresolved legal questions of when a state can exert its laws beyond its borders. Blue states have passed shield laws that purport to protect doctors who provide medications to people in states where the procedure is banned, and we’re only slowly starting to see the first challenges to those statutes.

This bill would amp up Texas’ power to enforce its laws on out-of-state providers, manufacturers and people who help move these pills into the state, but there’s only so much lawmakers can do without buy-in from other states.

“They’re asserting as much jurisdiction, as much extraterritorial application of their laws as they can get away with,” said University of Texas at Austin law professor Theodore Rave. “Whether other states will recognize that, I don’t think there’s any guarantee that they will. I think a lot of states wouldn’t.”

But whether or not this bill ends up passing into law, let alone being honored by other states, it sets out a whole new set of tools to tackle abortion pills — and a whole new set of unresolved legal questions.

“Texas has always been a place where anti-abortion strategies that are exported nationwide begin,” said Mary Ziegler, a law professor and legal historian at the University of California Davis School of Law. “Even if this is the first we've seen of these strategies, it will not be the last. We can be virtually sure about that.”

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