civil-law civil-procedure tort abortion texas-sb8
May one have an affirmative defense to the ‘Texas Heartbeat Act’, SB8, if they require reimbursement from the patient for any statutory damages?
<p>Example:</p>
<p>A provider <em>(and/or others, such as an insurance company or Uber driver)</em> requires a patient seeking a potential abortion to sign a contract agreeing to reimburse them for any potential costs or judgements under this law.</p>
<hr />
<p>Would the undue burden that places upon a patient allow that defendant an affirmative defense under section 209 (<a href="https://capitol.texas.gov/tlodocs/87R/billtext/html/SB00008F.htm" rel="nofollow noreferrer">text</a>) (<a href="https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00008F.pdf#navpanes=0" rel="nofollow noreferrer">pdf</a>) <em>(“CIVIL LIABILITY: UNDUE BURDEN DEFENSE LIMITATIONS”)</em> of subchapter H <em>(“DETECTION OF FETAL HEARTBEAT”)</em> of chapter 171 <em>(“Health and Safety Code”)</em>, as amended by the <em>‘Texas Heartbeat Act’</em>?</p>

<h2>Probably not</h2>
<p><a href="https://capitol.texas.gov/tlodocs/87R/billtext/html/SB00008F.htm" rel="nofollow noreferrer">SB8</a> section 171.209 which creates the &quot;undue burden&quot; defense, sharply limits it.</p>
<p>It is available only when</p>
<blockquote>
<p>the United States Supreme Court holds that the    courts of this state must confer standing on that defendant to assert the third-party rights of women seeking an abortion  (section 209 (a)(1))</p>
</blockquote>
<p>or</p>
<blockquote>
<p>the defendant has standing to assert the rights of women seeking an abortion under the tests for third-party standing established by the United States Supreme Court (section 209 (a)(2))</p>
</blockquote>
<p>If and only if one of (a)(1) or (a)(2) is true, then under 209(b) a defense may be asserted <strong>if</strong></p>
<blockquote>
<p>the defendant demonstrates that the relief sought by the claimant will impose an undue burden on that woman or that group of women seeking an abortion.</p>
</blockquote>
<p>Subsection (c) further limits the defense, requiring a defendant to prove that an award of damages will prevent (under (c)(1)) or &quot;place a substantial obstacle in the path of&quot; (under (c)(2)) a woman or group of women seeking abortion.</p>
<p>Subsections (d) and (e) further limit the defense.</p>
<p>Even assuming that the standing issues in 209(a) are resolved in favor of the defendant, I don't think a contract between the defendant and a patient requiring the patient to reimburse the provider for any damages under SB8 would meet 209(c). Since the law does not require such a contract, I think a court would likely regard this as a self-imposed burden, or a choice by the provider, but not a burden imposed by the award of damages.  But this is a novel, untested section of a novel, untested law.</p>
<p>It seems clear (to me at least) that the intent was to have section 209 be just enough of a defense to make it harder to rule SB8 unconstitutional, but not to be a practical defense in any real case. But ther is no telling what arguments might be made if a defendant raises 209(b), or how a court would rule.</p>
<p>The fact patter that 209(b) seems designed for is an argument that a damage award would force a provider to cease operations, thus placing an undue burden if there are no other providers open and willing to act. Even so, such a defense is only available if the standing issues in 209(a) are resolved in favor of the defendant.</p>
