Bloomberg Law
Sept. 10, 2021, 8:00 AM

The Texas Abortion Law Sleeper Issue: It Limits Access to Counsel

Leah Godesky
Leah Godesky
O'Melveny & Myers LLP
Kendall Turner
Kendall Turner
O'Melveny & Myers LLP

We cannot say enough bad things about Texas Senate Bill 8. First and foremost, it prohibits abortion at a point in pregnancy so early that many women do not even know they are pregnant. But don’t sleep another deplorable provision of the law: It also curtails access to counsel for those hoping to challenge this blatantly unconstitutional infringement on the right to choose.

The law prohibits abortion starting at the point in pregnancy when a “fetal heartbeat” can be detected. You’ve probably heard that typically first occurs around “six weeks,” but that six-week count runs from the date of a woman’s last menstrual period—which is only four weeks into a pregnancy.

Many women do not realize they are pregnant then, because they may have irregular periods or may not know the date of their last period. And at that stage of gestation, the fertilized egg is approximately 18 weeks from viability.

Unlike abortion restrictions in many other states, Texas officials do not enforce Senate Bill 8. Instead, the law deputizes any private citizen or entity to sue those who provide abortion care, as well as those who “aid or abet” that care. These “aiders and abettors” are liable for a minimum $10,000 penalty if they lose the lawsuits filed against them.

And the individuals who bring these unconstitutional suits could seek to characterize as an “aider or abettor” someone who merely lends a car to a friend so she can drive to obtain care, or a therapist who supports a patient through the difficult decision to terminate a pregnancy—or maybe even someone who has donated to help women in Texas access critical health care.

Potential Liability for Attorneys’ Fees, Costs

If that isn’t enough to raise your blood pressure, Senate Bill 8 also interferes with access to counsel for those health-care providers and patients brave enough to challenge this unconstitutional regime. Under the law, any attorney who represents a litigant challenging any Texas abortion restriction can be liable for the other side’s attorneys’ fees and costs.

Because cases like these can span several years and involve multiple appeals, the costs and fees can be substantial. In the last abortion case in which the U.S. Supreme Court heard oral argument, the prevailing parties sought nearly $9 million in fees and costs.

We’re unaware of any other statute, anywhere in the country, that purports to put attorneys and law firms on the hook simply because of the issue they are litigating or the clients they choose to represent. Those who drafted Senate Bill 8 hoped this would scare off lawyers and law firms that might want to help challenge Texas’s abortion restrictions—and it probably will.

As a result, while reproductive-rights groups have historically been able to draw on the resources of law firms and other private entities to help them litigate reproductive-rights cases, they will find that much harder to do when litigating in Texas. While some lawyers may still choose to help litigate such challenges, many will not, given the possibility of steep financial penalties imposed by a judicial system that is increasingly hostile to reproductive rights.

By penalizing people for expending resources to defend the right to choose in Texas, Senate Bill 8 intrudes on fundamental First Amendment rights. The Supreme Court has ruled that the Constitution protects your right to donate unlimited funds to political campaigns. But if you donate legal services to protect freedom of choice in Texas, you might find yourself on the hook for millions of dollars.

Reproductive-rights organizations have no choice but to participate in this crucial fight and face any financial penalties that may follow. But many reproductive-rights advocacy groups have no legal staff or employ only one or two attorneys, and even groups with larger legal divisions may be overwhelmed by having to defend themselves against a slew of lawsuits from private citizens. And every dollar spent challenging this absurd law or paying whatever penalties may be assessed is a dollar that could have gone to patient care and the vital work of these other organizations.

Other States May Copy Texas

Even worse, other anti-choice states are sure to follow Texas’s lead. These states already routinely copy anti-choice legislation from one another verbatim. If this happens—and if the judiciary allows it to happen—patients seeking abortion care and their advocates aren’t the only ones who should be concerned.

If circumventing the Constitution is as easy as Texas is making it seem, a legion of states may soon seek to use Senate Bill 8’s vigilante-justice regime to curtail all sorts of rights we used to think of as protected under the Constitution—and we may have a very difficult time retaining lawyers to stop them.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Leah Godesky is a partner at O’Melveny in Century City, Calif., and New York. She is a committed pro bono advocate and champion for crucial social causes, winning numerous reproductive-rights cases challenging Arkansas and Kentucky statutes as unconstitutional while working as co-counsel with lawyers at the ACLU’s Reproductive Freedom Project.

Kendall Turner is counsel in O’Melveny’s Washington, D.C., office. She focuses her litigation practice on cases raising constitutional claims. A former clerk for Justice Stephen Breyer, she has argued before the U.S. Supreme Court and has helped litigate reproductive-rights cases at all levels of the federal judiciary.

The views expressed here are the authors’ alone and do not necessarily reflect the views of O’Melveny & Myers LLP.