Texas lawmaker fears SB 8 could make driving someone to an abortion appointment a crime

The Texas legislature recently passed Senate Bill 8, an omnibus measure that includes some of the strictest abortion restrictions that state has seen in years. 

SB 8 criminalizes two abortion procedures, which should apply only to the doctors who perform them. But as the Texas Observer reported, Rep. Joe Moody worries physicians wouldn't be the only ones open to prosecution if SB 8 becomes law. Because of the legislation's broad wording, Moody argued, the bill could be interpreted as applicable to anyone involved in the procurement of the "unlawful" abortion — even if that involvement is as peripheral as booking the appointment or driving the patient to the clinic. 

Moody, a criminal justice expert and former prosecutor, pointed to an existing Texas law that can hold people "criminally responsible" for another's actions. In this case, Moody fears, it could be argued that the person who drives a friend to an abortion appointment is "acting with intent to promote or assist in the commission of the offense," in violation of the law of parties. 

In order to protect tangentially related third parties from prosecution, Moody told the Observer, SB 8 would have to specify that they are exempt. As written, the legislation doesn't do that. 

SB 8 bans "partial bith abortions," a non-medical and misleading name for late-term dilation and extraction, abortions that only occur under extremely rare circumstances, typically when the mother's life or health is at risk. It unilaterally bans "dismemberment abortions," or dilation and evacuation, the most common second trimester abortion procedure. Additionally, SB 8 stipulates that fetal tissue — whether from abortion or miscarriage or stillbirth — cannot be donated, but must be buried or cremated instead. 

The section of the bill that prohibits dilation and evacuation procedures states that neither a patient, nor "an employee or agent acting under the direction" of the doctor who performs the procedure, nor "a person who fills a prescription or provides equipment" are punishable under SB 8. The language pertaining to dilation and extraction procedures, however, makes no such provisions. The general language could leave third parties vulnerable, according to Moody.

"I’m not trying to get into policy; I believe this is an unintended consequence of the law," Moody told his fellow representatives on Friday, arguing for an amendment he hoped would close what he sees as a loophole. "If the goal is to prosecute people who perform these acts, what’s written here goes way beyond that." 

Moody's amendment would have made sure that "a person may not be prosecuted under this section solely as a party," but it failed to pass on Friday. As Moody told the Observer, voting down the amendment might signal his colleagues' intention to implement a larger agenda than they're letting on. The measure now moves forward to Gov. Greg Abbott's desk awaiting his signature or a veto, although he is expected to sign it. 

Republican Rep. Jeff Leach, an abortion opponent, defended the bill by explaining that it applied only to those "knowingly assisting the criminal enterprise." If a receptionist doesn't know what the appointment she's booking is for, she wouldn't be charged with anything. 

But the idea that a receptionist could be kept in the dark about the particular procedure they are scheduling seems unrrealistic at best, and not knowing doesn't solve the legal problem anyway, Moody said.

"Others don’t have to know what’s going on, they can just be part of the process," he told the Observer, adding that "the law of parties casts a wide net."

"Prosecutors have wide discretion on the charges being brought," he explained. And Moody, as a former prosecutor, would know.