By: Abigail Whitmore
During its regular 2021 legislative session, the Texas legislature passed and the Texan Governor subsequently signed into law S.B. 8,[1] a bill that almost completely bans abortion by establishing a civil cause of action against anyone that aids an individual in obtaining an abortion.[2] If allowed to remain in effect, the bill would be an affront to the constitutionally protected right to abortion care.[3] The ban already sidesteps constitutional protections for abortion care because it proposes civil rather than criminal causes of action in cases of abortion.[4] Though there is a chance S.B. 8 will remain enjoined and eventually be deemed unconstitutional, the bill introduced a new civil remedies strategy for restricting abortion. This creates an entire set of other potential legal issues because it contradicts and undermines civil rights requirements. There is a significant risk to civil rights protections if other states attempt similar strategies to restrict abortion access.[5]
Title VII of the Civil Rights Act of 1964 establishes civil remedies in cases of employment discrimination based on an individual’s membership to a protected class.[6] Title IX of the Education Amendments is another form of civil rights protection that prohibits discrimination based on sex in educational institutions that receive federal funding.[7] Both of these federal pieces of legislature establish protections from discrimination based on sex and gender, which has been interpreted to include a person’s reproductive choices.[8] When an abortion ban enforced through civil remedy is read in the context of these federal statutes, the problematic nature of these bans becomes obvious.
The conniving nature of the civil remedies scheme that S.B. 8 uses means that the person having an abortion cannot be sued for that decision, while individuals, directly and indirectly, involved with the abortion can be. It is also well established that an employee cannot be discriminated against based on someone else’s protected bases.[9] However, the civil remedies scheme starts to get into the gray area of civil rights protections. One simple example of this is a supervisor that finds out that Employee A has an abortion and Employee B paid for the procedure. If the supervisor decides to sue Employee B, Employee B has no claim of a hostile work environment because Employee B is not being discriminated against on the basis of her own sex or gender. However, if the supervisor hears that Employee A got an abortion and sends around a text to the rest of the staff saying, “I will be bringing suit against any employee that assisted Employee A in getting an abortion.” Is this behavior sufficient to constitute creating a hostile work environment? Or is the text message announcing that the supervisor will be pursing a completely legal lawsuit against employees, permissible?
This is one of many scenarios that demonstrate the array of complications and contradictions that a civil remedy scheme for abortion bans creates under civil rights law. The clear result if S.B. 8 and potentially subsequent state laws are deemed constitutional by the Supreme Court is a quick unraveling of the discrimination protections Title VII and Title IX provide to individuals that have abortions. A state statute that creates a cause of action that specifically targets an otherwise protected class is illegal and violates federal law because it creates avenues for discrimination in the workplace and in educational institutions.
The obvious solution to the contradiction caused by S.B. 8 is for the Supreme Court to deem the law unconstitutional because it limits an individual’s freedom to make reproductive health decisions, forcing the law’s repeal. This would also discourage other states from attempting similar schemes to restrict abortion care. However, S.B. 8 also highlights some shortcomings in civil rights law that the Court should resolve. For example, the rights of all individuals would be strengthened if the Court established that Title VII and Title IX protect people who are discriminated against because of their relationship with an associate, friends, or family members that are members of a protected class.
The Texas abortion ban is a startling attack on reproductive rights, but the attack does not stop there. The clear connection between the ban and civil rights law shows how quickly abortion bans can start to unravel other forms of sex and gender discrimination relief. Only by taking a firm stance against these sorts of attacks can the Court avoid calling into question decades of decisions relating to discrimination based on reproductive capacities and abortion.
[1] See Tex. S.B. 8 Prior Sess. 2021-2022 (2022), https://legiscan.com/TX/text/SB8/id/2395961.
[2] On October 6, 2021, The United States District Court for the Western District of Texas Austin Division issued an order granting a preliminary injunction, finding that it is substantial likely that S.B. 8 violates the Fourteenth Amendment and likely interferes with principles of preemption and intergovernmental immune. See United States v. Texas, USDC No. 1:21-CV-796-RP (W.D. Tex. Oc.6, 2021). The United States Court of Appeals for the Fifth Circuit subsequently granted a temporary administrative stay of the district court’s injunction, essentially putting S.B. 8 back into effect. See United States v. Texas, No. 21-50949, 2021 WL 4706452 (5th Cir. Oct. 8, 2021). As of the publication of his blog, the fate of S.B. 8 remains highly uncertain.
[3] E.g. Roe v. Wade, 410 U.S. 113 (1973) (finding that the Constitution protects a pregnant person’s liberty to choose to have an abortion without excess government restriction).
[4] See Tex. S.B. 8.
[5] A copycat bill using the same civil remedy structure is already being proposed in Florida. See Rachel Treisman, A Florida Lawmaker is Proposing a Restrictive Texas-Style Abortion Bill, NPR (Sept. 23, 2021), http://npr.org/2021/09/23/1040132587/florida-abortion-restriction-bill-texas-ban.
[6] See The Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (2020).
[7] See 20 U.S.C. ch.38 §§ 1681, 1688 (2020).
[8] See Doe v. CARS Protection Plus, Inc., 527 F.3d 358, 364 (3rd Cir. 2008) (finding that employment discrimination based on gender includes discrimination based on having had an abortion).
[9] See Bostock v. Clayton County, 140 S. Ct. 1731, 1744 (2020) (finding that Title VII applies in circumstances where, but for the individual’s protected basis, she would not have suffered a particular harm).