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Example:

A provider (and/or others, such as an insurance company or Uber driver) requires a patient seeking a potential abortion to sign a contract agreeing to reimburse them for any potential costs or judgements under this law.


Would the undue burden that places upon a patient allow that defendant an affirmative defense under section 209 (text) (pdf) (“CIVIL LIABILITY: UNDUE BURDEN DEFENSE LIMITATIONS”) of subchapter H (“DETECTION OF FETAL HEARTBEAT”) of chapter 171 (“Health and Safety Code”), as amended by the ‘Texas Heartbeat Act’?

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    I'm not a lawyer, but I suspect that Texas judges might be inclined to simply void that part of the contract, if someone did try to give the law the runaround like that.
    – nick012000
    Sep 23, 2021 at 0:38
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    Note that 209(a) sets a very high bar for even being able to raise such an affirmative defense in the first place. Sep 23, 2021 at 0:58
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    @nick012000 that is an apparently common misconception, but it is a misconception nonetheless. Every judge in the country, state and federal, is sworn to uphold the constitution, and that includes not enforcing laws that are clearly unconstitutional. The supreme court doesn't have time to invalidate every unconstitutional statute itself, especially state statutes.
    – phoog
    Sep 23, 2021 at 1:01
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    @nick012000 that's simply not true. Under the supremacy clause of the federal constitution, state judges are bound to consider not only whether state laws comply with the federal constitution but also whether they comply with relevant federal statutes. Decisions on statutory constitutionality are routinely made by first-instance trial courts, both state and federal, as well as by higher state courts and by federal circuit courts. Only the supreme court can overturn supreme court precedent, but any court can rule on the constitutionality of a law for which no precedent exists.
    – phoog
    Sep 23, 2021 at 1:10
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    @nick012000 see also the question "Is litigation required for SCOTUS to judge the constitutionality of an issue?" and its answers where there is some discussion of this issue. In fact, in order for the supreme court to consider whether a law is constitutional, the question must generally first be considered by the lower courts, because if nobody raises the question in the lower courts then nobody is allowed to bring it up before the supreme court.
    – phoog
    Sep 23, 2021 at 1:41

1 Answer 1

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Probably not

SB8 section 171.209 which creates the "undue burden" defense, sharply limits it.

It is available only when

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))

or

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))

If and only if one of (a)(1) or (a)(2) is true, then under 209(b) a defense may be asserted if

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.

Subsection (c) further limits the defense, requiring a defendant to prove that an award of damages will prevent (under (c)(1)) or "place a substantial obstacle in the path of" (under (c)(2)) a woman or group of women seeking abortion.

Subsections (d) and (e) further limit the defense.

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.

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.

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.

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