Does Texas S.B. 8 actually "ban abortion"? [closed]

Question

Note: I voted to close my own question. I agree, the way I asked it was too opinion-based.

I've not read the Texas statute exhaustively, but as far I understand, it is not a criminal statute. Furthermore, section Sec. 171.205 seems to allow abortions in cases of a medical emergency, as determined by the doctor performing the abortion.

I have read the ACLU's headline description: SUPREME COURT TO REVIEW TEXAS ABORTION BAN. I've read the body, saying for example: "S.B. 8 bans abortion after six weeks into a pregnancy..." That is scary stuff.

I absolutely believe that abortion should not be banned. But viewing the news with a skeptical eye, my immediate reaction was that "ban" seems to imply criminality. But comments have suggested it's broader, so let's examine if S.B. 8 "officially or legally prohibits abortions". It certainly prohibits them without the doctor checking for a fetal heartbeat, which scares me less, but it's not conclusive, it is a complex law setting standards applicable to a doctor, not on a mother. In fact, the rest of the conditions seem comforting similar to medical ethics as many doctors interpret them. Other doctors interpret the Hippocratic oath differently.

I'm no expert on medical ethics, but if there is a ban here, it seems to be imposed by the Hippocratic oath. In in Wikipedia, I find this:

I will use those dietary regimens which will benefit my patients according to my greatest ability and judgment, and I will do no harm or injustice to them.[7] Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course. Similarly I will not give to a woman a pessary to cause abortion. But I will keep pure and holy both my life and my art. I will not use the knife, not even, verily, on sufferers from stone, but I will give place to such as are craftsmen therein.

It's interesting how closely tied this is to other controversies, like medically assisted suicide. States (including mine) have legislated to relax the requirements on doctors regarding terminal patients, but that seems like a state-by-state choice.

Related second question about the legal claims:

Are the other claims, e.g. "Texas politicians will have effectively overturned Roe v. Wade." accurate?

Note: I"m not at all opposed to the ACLU, but I do try to read carefully.

Answer 1

The law actually does ban abortions, when a fetal heartbeat is detected. Here is the law. Sec. 171.204 says

(a) Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required by Section 171.203 or failed to perform a test to detect a fetal heartbeat.

(b) A physician does not violate this section if the physician performed a test for a fetal heartbeat as required by Section 171.203 and did not detect a fetal heartbeat.

You could say that it is an "ineffective ban", because it does not impose criminal penalties for violating the prohibition, but it is a prohibition nevertheless. As pointed out by Ohwilleke, "Laws without penalties are actually rather common". There were a number of "bans" announced during covid lockdown, which (being promulgated by gubernatorial decree) had no penalty for violation, so I don't find the use of "ban" to be misleading.

Answer 2

If you want something slightly longer than a headline for the explanation why the left/progressives call this a ban:

The Texas GOP passed a law that effectively bans abortions after the sixth week of pregnancy — before many women even realize they are pregnant — but outsourced enforcement of this ban to private citizens.

Of course, someone in the Saudi rulership might say that abortion is not banned in their country... if by that they mean that it's still allowed in order to save the life of the mother, but otherwise rather banned. (Ok, they prefer the word "forbidden" when it comes to Islamic countries, but they use "ban" when talking about non-Islamic ones.) See also Poland, which passed a similar law (to Saudi one, I mean). The BBC headlined "Poland enforces controversial near-total abortion ban".

Also the Texas ban is not as ineffective as someone suggest... WaPo quoted:

This week, John Seago, the legislative director for Texas Right to Life, told NPR, “We have a network of pro-life attorneys and pro-life activists who even now give us tips and send us information that may lead one to believe that the law is being broken by the abortion industry.”

According to WaPo the conservative strategy is to use such organizations... pretty much mirroring how ACLU etc. bring lawsuits "on the other side" for civil rights etc. Also WaPo mentions:

The law also bars courts from awarding “costs or attorney’s fees … to a defendant in an action brought under this” law. Even if abortion providers win the lawsuits, in other words, they will incur costs — financial, emotional and otherwise — while their opponents’ costs and potential losses are limited.

So if you want to be very charitable with the conservatives' viewpoint, you could say that the law [at least] gives the right to impose private fines on abortion providers, limited in monetary amount only by the number of people who are willing to sue a given provider. Fox News uses the term "outlawing" instead of ban... even that sounds pretty awkward in context (really "a law outlawing abortions"):

Texas implemented a law this week outlawing abortions once medical professionals can detect a fetal heartbeat, usually around six weeks into a pregnancy and before many women know they are pregnant.

and they also have coverage of the first lawsuit already launched under this new law.

(Frankly, the Q would have been more suitable on politics SE than here, as an ACLU news release is not a legal document, so it's not using strict legal terminology.)

If you're curious, Black's fabled Law Dictionary, defines ban rather expansively (4th ed. quoted here)

BAN.

In Old English and Civil Law: A proclamation; a public notice; the announcement of an intended marriage. [Cowell.] An excommunication; a curse, publicly pronounced. A proclamation of silence made by a crier in court before the meeting of champions in combat. [Cowell.] A statute, edict, or command; a fine, or penalty. An expanse; an extent of space or territory; a space inclosed within certain limits; the limits or bounds themselves. Spelman. An open field; the outskirts of a village. A privileged space or territory around a town, monastery, or other place.

French Law: The right of announcing the time of mowing, reaping, and gathering the vintage, exercised by certain seignorial lords. [Guyot, Repert. Univ.]

Old European Law: A military standard; a thing unfurled, a banner. Spelman. A summoning to a standard; a calling out of a military force; the force itself so summoned; a national army levied by proclamation.

Note that I'm not claiming this is the sense in which the ACLU is using the term, rather than the modern synonym "to prohibit".

Also, if you peruse almost any medical or human rights article on the matter they freely use the term ban in the same way as ACLU does, e.g.

The impact of abortion bans on women’s health in the Middle East and North Africa (MENA) region is understudied [...] In contrast to extremely restrictive countries such as El Salvador and Poland, and, more recently, several US states that ban nearly all abortions, all countries in the MENA region permit abortion if the pregnant woman’s life is in danger. [...] In most cases, despite the social and legal ban on abortion in Lebanon, women are able to terminate one or several pregnancies under medical supervision in private hospitals and doctors’ offices.

So it really depends in which circles you're swimming whether this is a proper usage of the word or not.

FWTW, AMA's reaction/headline is

Texas SB 8 puts bounties on doctors’ heads for delivering care

They got the legal angle somewhat better as to what SB.8 actually does, but then there's of course the choice of language how to describe that...

Answer 3

But viewing the news with a skeptical eye, I've got to say a "ban" seems to imply criminality.

The distinction between a criminal conviction resulting in a fine, versus a "civil" proceeding that results in "damages", seems rather small to me. There are some differences that one could list, such as it not showing up on a criminal background check, but the main punitive effect remains the same. In some ways, this is worse, since, for one thing, I'm not sure that double jeopardy applies.

Traffic violations and parking tickets are not, technically "criminal" matters, but I don't think most people would have trouble agreeing that some places have "banned" right turn on right or parking in loading zones. There are many issues that are addressed mainly or solely through civil recourse, such as sexual harassment or discrimination, but I don't think most people have trouble agreeing that there are bans on sexual harassment or discrimination. The ADF, a right-wing hate group, has no problem calling a policy of expelling those who engage in discrimination a "ban", even though no criminal prosecution is involved, so it's not just the Left that uses "ban" to mean more than criminal prosecution.

Answer 4

Ban, as a noun, is an official or legal prohibition of something. As a verb, it is the act of passing a prohibition. The term ban usually applied to the prohibition of something physical.

Calling the actual restrictions imposed under Texas S.B. 8 a prohibition is really a stretch, particularly when compared to other Texas restrictions still on the books. Consider the wiki distinction between some common interpretations of the words Restriction v Prohibition

"Restriction" is a related term of prohibition. As a noun restriction is the act of restricting or the state of being restricted.

As a proper noun, prohibition is (history) any of several periods during which the manufacture, transportation, import, export, and sale of alcoholic beverages were restricted or illegal.

A more general definition of prohibition is the action of forbidding something, especially by law. For example, "they argue that prohibition of drugs will always fail".

An obligation is an act or course of action to which a person is morally or legally bound; a duty or commitment.

Thus it would be more accurate to say Texas S.B. 8 imposes additional legal obligations on physicians performing abortions.

I believe it is common to find legislation regarding legal and fiduciary obligations to be enforceable through civil suits while violating prohibitions generally results in criminal trials.

This is a partial answer and Community wiki.