Thursday, September 23, 2021

Texas exploited a loophole to effectively ban abortion. Providers can exploit a loophole to continue performing them.

This summer, Texas passed a law, SB8, that was intended to flummox the federal courts of the United States, preventing them from ruling on an abortion restriction that is not supported by the majority of Americans and structured in a way that 81% of Americans oppose

The law is structured simply: Abortion is prohibited after around 6 weeks (when early cardiac electrical activity is detected - "a little flutter in the area that will become the future heart"). However, state and local law enforcement is prohibited from enforcing the law. Instead, anybody who performs or otherwise facilitates such an abortion can be sued by literally any private citizen in the United States to collect a $10,000 bounty. 

Chief Justice Roberts' dissent describes the scheme to avoid federal court review simply:

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.... And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. 

For reasons known only to the homophobe behind the concept, the law prevents recovering an infinite amount of money from an a person facilitating an abortion by creating an absolute defense to a suit brought to collect the bounty:

(c)  Notwithstanding Subsection (b), a court may not award relief under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion performed or induced in violation of this subchapter, or for the particular conduct that aided or abetted an abortion performed or induced in violation of this subchapter. [emphasis added] (We'll call this statute the "I already paid defense")

Did you spot the loophole in this structure yet? Let's explore it. Imagine that there are two abortion providers, Dallas Reproductive Freedom and Austin Reproductive Freedom. The two providers agree to exchange a list of scheduled abortions for that day (of course, the patients would need to waive HIPPA to do this, which means many women will still feel the need to travel for an abortion, but no loophole is perfect). Each provider (or an employee in the event courts read "person" to exclude legal persons such as corporations) prepares a lawsuit against the other for $10,000 for each abortion the other provided that day.

Each provider files suit against the other at the end of each business day. The the parties accept service of the suit by email and immediately file stipulated judgments in both suits, with each defendant agreeing to a stipulated judgment where they simply pay the other provider the full amount. This is where the "I already paid" defense loophole kicks in: Each provider writes a check to the other for the full amount. Preferably they perform the same number of abortions each day so that they can each exchange a identical check (although they can also equalize payments by averaging them over time, bringing in additional clinics, etc). If they each perform 20 abortions, they give each other a check for $200,000.

This is the end of their liability. They can now demonstrate that they "previously paid the full amount of statutory damages" and the statute no longer applies with regard to those covered abortions.

I leave it to tax lawyers to figure out if there is a tax issue I'm missing. A fundraising component would be required to pay for the filing fees for the suits. Lawyers would need to volunteer to at least draft the complaint templates that would be used by the clinics. The bottom line, though, is that Texas women would once again have some level of reproductive rights, and the #texastaliban will have failed to actually impose taliban-like restrictions on women.