The bill, which will be read on the Senate floor in the coming weeks, would be civilly enforced, imposing a minimum $100,000 fee in statutory damages per violation. Any person, with the exception of government officials, can sue an entity, including physicians, involved in the manufacturing, distribution, transportation, delivery, prescription, provision, or possession of an abortion-inducing drug.
“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,” Sen. Bryan Hughes, the main author of the bill, said when an identical version of the bill made it through the Senate during the regular session. “This is a strong statement about these pills and their harm to little babies and to women. It's strong.”
The bill allows for incredibly limited exceptions for medical emergencies, ectopic pregnancies and the removal of an already deceased fetus in the case of a miscarriage. But critics say there are frequent and necessary medical uses for the most commonly used abortion-inducing drugs, mifepristone and misoprostol, beyond what the bill outlines, and that the bill could place a target on Texas doctors performing standard procedures with the drugs.
“With the potential passage of SB 7, hesitation is absolutely reintroduced with the management of obstetric emergencies and the day-to-day management of miscarriage, and day-to-day gynecologic care,” said Dr. Deborah Fuller in an email. Dr. Fuller has been a practicing OB-GYN who has been practicing in Dallas since 1988. “...The hesitation is there as I would be limited in my use of these medications I call upon weekly… This puts us back in an environment of fear and confusion, and could also lead to potential harm for the patient.”
The fear of lawsuits introduces a contradiction between a doctor’s Hippocratic Oath to provide the best care possible and legal limitations.
“Our Hippocratic Oath is to provide, to the utmost of our ability, ethical and professional care for all patients under all circumstances. In Texas, we are aware that those providing obstetrical care (emergency room providers, obstetrical providers, and family medicine providers) have to walk a tightrope with our Hippocratic Oath, knowing SB 8 and SB 4 exist, which eliminate any pregnancy termination… With the passage of SB 7, if I have any hint that I have any limitations of these medications, I have to think about the safety of performing various procedures without the safety of misoprostol.”
Legal Complexities
The bill is seemingly written to target out-of-state distributors and manufacturers of abortion-inducing drugs. Shipping abortion-inducing drugs into Texas, as well as prescribing the medication over a telehealth consultation, has been illegal in Texas for two years. However, shield laws, usually in liberal states, provide legal protections to providers and manufacturers who prescribe and ship the pills to women who cannot get them within their own state borders.SB 7 applies only to private citizens and does not give the state any power, according to Texas Policy Research, a nonprofit policy institute that endorsed the bill. Thus, it cannot be as easily challenged in court.
“The bill makes it clear that the state is not enforcing the law directly, which may be a legal strategy to avoid judicial review under federal constitutional protections,” reads the Texas Policy Research bill analysis.
Amy Bresnen and her husband Steve have been lobbyists in Austin for decades, and have worked diligently on abortion-related legislation for several sessions. The Bresnens explain that SB 7 allows private citizens to claim that an aborted fetus is a “wrongful death" in order to meet the injury requirements for civil court.
“They're trying to say that the state's been injured and this private person could bring the lawsuit, but it takes the state out of it completely... normally you can't bring a lawsuit if you haven't been injured," said Amy Bresnen. "So that's what's going on. That's why the wrongful death language was in there, because there has to be some sort of underlying tort claim. To be clear, in this case, the wrongful death would be the fetus that was aborted by one or two consenting parents.”
The Bresnens devoted lots of their energy this session to working on the Life of the Mother Act, which was signed into law on Aug. 19. The new law carefully provides a clear framework for when doctors can perform life-saving abortions. But the Bresnens worry SB 7 could counteract some of the positives of the Life of the Mother Act.
“[The Life of the Mother Act] was a bill that we worked on with medical groups during the legislative session and that passed, and it does provide great clarity,” said Amy Bresnen. “A lot went into that, and we don't want to see the Life of the Mother act overridden by [SB 7].”
SB 7 is still in the initial stages. A prior version, filed by Hughes during the regular session, cleared the Senate in a 19-11 vote but did not make it out of the House Committee on State Affairs. Filing a matching House Bill version is standard procedure for major legislation that Republicans want to pass, especially particularly contentious ones like abortion bills, but a House version of SB 7 has not been filed yet. The Bresnens are hoping that SB 7 will not succeed, and a House version will not be filed.
“These medications are very important for non abortion use,” said Steve Bresnen. “A lot of the other part of our time has been… [spent] trying to make sure that… there’s no collateral damage done.”
How We Got Here
When the state passed the Texas Heartbeat Act in 2021, which outlawed most abortions, including medical abortions, Texas women were left with few options. Many resort to out-of-state providers, some of whom prescribe the pill via telehealth appointments and ship the pill into the state. It is illegal, but there are several organizations, like Plan C and Mutual Aid, that continue to provide care in states with shield laws.In December, Texas Attorney General Ken Paxton filed a lawsuit on behalf of the state against a New York doctor who prescribed and shipped abortion-inducing drugs to a woman in Collin County.
“In this case, an out-of-state doctor violated the law and caused serious harm to this patient," said Paxton in a release announcing the suit. "This doctor prescribed abortion-inducing drugs—unauthorized, over telemedicine—causing her patient to end up in the hospital with serious complications. In Texas, we treasure the health and lives of mothers and babies, and this is why out-of-state doctors may not illegally and dangerously prescribe abortion-inducing drugs to Texas residents."
In February, a Collin County district court issued a $100,000 civil penalty and ordered a permanent injunction in a default judgment after Dr. Carpenter failed to respond to the suit. However, a county clerk for Ulster County in New York, exercising the state's shield laws, rejected any attempts to enforce the judgment and collect the fee. In July, Paxton filed a petition against the county clerk.
“Dr. Carpenter is a radical abortionist who must face justice, not get legal protection from New York liberals intent on ending the lives of as many unborn children as they can,” said Paxton in a July press release. “No matter where they reside, pro-abortion extremists who send drugs designed to kill the unborn into Texas will face the full force of our state’s pro-life laws.”
Today, the attorney general issued several cease-and-desist orders against organizations, including Plan C, for promoting and providing abortion-inducing drugs. SB 7 allows private citizens to follow Paxton's litigative lead, and Dr. Fuller says that if SB 7 is passed, the true burden will be on patients whose proper care will be unnecessarily threatened.
"If SB7 is passed, the ability to handle obstetrical emergencies, miscarriage care and gynecologic services is inhibited by the potential of limitations of these medications, thus leading to potential lawsuits," she said. "We have to fear lawsuits both from other citizens for using the medications through the “bounty hunter” provisions, and from our patients when care is compromised without them."
