May 26 UPDATE: The Senate accepted House amendments to SB 8 on a vote of 22-9 Friday afternoon. The bill now heads to Governor Greg Abbott’s desk for his signature; pending approval, it will take effect Sept. 1.
Representative Joe Moody, a former prosecutor, was sure there’d been a mistake.
The sweeping anti-abortion bill that passed the Texas House May 19 could allow nearly anyone involved in the process of an unlawful abortion to be charged with a state jail felony, Moody said. That includes the doctor who performed the abortion, but also the person who drove the woman to the clinic, the receptionist who booked the appointment and even the bank teller who cashed the check that paid for the procedure.
“I’m not trying get into policy; I believe this is an unintended consequence of the law,” Moody said on the House floor Friday evening as he introduced an amendment to Senate Bill 8 that would limit who can be prosecuted. Three hours into the abortion debate, there were several calls to order as the El Paso Democrat pleaded with fellow lawmakers to pay attention.
“If the goal is to prosecute people who perform these acts, what’s written here goes way beyond that,” said Moody, one of the leading criminal justice experts in the House. He chairs the Criminal Jurisprudence Committee and worked as a prosecutor in the El Paso County District Attorney’s Office for four years.
It wasn’t a mistake. The amendment failed, 51-83 and only one Democrat, Representative Ryan Guillen of Rio Grande City, voted against.
The Observer spoke to several other attorneys who each interpreted the bill’s applications differently — indicating, at the very least, that the bill provides a subjective tool for prosecutors, who can be politically motivated. And that has Moody worried.
SB 8, which awaits final approval from the Senate, would criminalize “partial birth abortions” and “dismemberment abortions” — both nonmedical terms used by anti-abortion advocates. The first is for a procedure already prohibited under federal law, and the second describes a dilation and evacuation (D&E) procedure, one of the most common forms of second trimester abortions. Both bans would subject a doctor who performs the abortion to a state jail felony, punishable by up to two years in prison, and exempt the woman who had the procedure. But under Texas law, prosecutors could come after anyone else involved in the process, unless they’re specifically exempted in the legislation.
The “law of parties” in Texas allows a person connected to but not actually committing a crime to also be charged. A person is criminally responsible under Texas law if he or she, acting with intent, “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” The law is intended to help take down criminal networks, Moody says, but can also be wielded against, for example, individuals loosely connected to the provision of an unlawful abortion.
“I think by rejecting my amendment, [opponents showed] their intent was not only to go after physicians. I guess I misunderstood,” Moody told the Observer. “[This bill] is so poorly drafted, so poorly worded, that I think it shows they’re not really concerned about making good policy.”
The key question is whether a person was knowingly involved, said Representative Jeff Leach, R-Plano.
If a bookkeeper or receptionist has no idea what’s going on, they shouldn’t be held to the same responsibility as the doctor performing the abortion, Leach told the Observer. But if they do know, that’s a different story.
“If there’s any individual who may not actually be performing the abortion but is knowingly assisting the criminal enterprise — that may not be a good way to put it — who is knowingly assisting in the provision of an unlawful abortion — then our laws ought to be narrowly tailored to hold those responsible,” said Leach, who was concerned Moody’s proposal might have let them off the hook and requested it be withdrawn.
As GOP lawmakers move to expand the scope of prosecution, they’ve also broadened the definition of what constitutes an illegal abortion. Following the 2016 Supreme Court ruling that struck two main provisions from Texas’ House Bill 2, members have shifted their rhetoric on abortion. Instead of claiming to protect women’s health, they’re criminalizing the procedure.
The Abolish Abortion Act, proposed by Arlington Republican Tony Tinderholt, also of the far-right House Freedom Caucus, would criminalize abortion at any stage and charge women and providers with a felony, without exemption for rape or incest. Tinderholt told the Observer the proposal would “force” women to be “more personally responsible.” Another proposal by fellow caucus member Matt Schaefer, R-Tyler, would remove the exception for fetal anomaly from the state’s 20-week abortion ban.
Leach, an attorney and Freedom Caucus member who describes himself as “pro-life and for the death penalty,” says there is a problem with how the “law of parties” is used in capital punishment, and he’s worked on bipartisan efforts this session to reform the law.
Without Moody’s failed amendment, the “partial birth abortion” ban does not exclude anyone besides the woman from criminal prosecution. The D&E ban, meanwhile, does clarify who cannot be prosecuted: “an employee or agent acting under the direction of a physician… or a person who fills a prescription or provides equipment” used in the abortion.
Joe Pojman, executive director of Texas Alliance for Life, said that he would support individuals who knowingly assist with the abortion facing prosecution, but that Moody’s inclusion of drivers and receptionists was “far-fetched.”
“It’s possible a third party could be prosecuted, but it would have to be someone close to the physician that is knowingly performing the abortion, like a nurse,” added Pojman, who said that in his 25 years lobbying against abortion in Texas, he’s never heard this kind of objection.
Leach also said he didn’t think Moody’s amendment was necessary, because the bill already protects unknowing participants from criminal prosecution.
“That’s wrong, and I told him that,” said Moody. The “knowingly perform” language in the bill is referring to the abortion provider only, but “others don’t have to know what’s going on, they can just be part of the process…The law of parties casts a wide net,” Moody said. “Prosecutors have wide discretion on the charges being brought.”
This ample freedom granted to prosecutors concerns critics of SB 8.
“We worry about rogue or malicious prosecutors,” said Blake Rocap, legal counsel for NARAL Pro-Choice Texas. “The point of this bill isn’t smart criminal justice; it’s targeted prosecution of people who want to help women access health care.”
Staff writer Sam DeGrave contributed to this report.