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Under the new Texas Abortion Law would the following be liable for a $10,000 fine

  • Utility Companies such as Power, Phone Broadband providing power to the clinics
  • Local Government for providing infrastructure to the clinics
  • Suppliers of medical equipment

The law states that civil action may be brought against anyone who

(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of privacy this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter;

Can providing supplies, infrastructure or power be considered "aiding or abetting"?

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    This seems utterly clear to me. I don't see why people have voted to close it as lacking details or clarity. Sep 23, 2021 at 14:25
  • @David Siegel (apart from the title ending mid-sentence) what's lacking, IMO, is any direct causal link between the supply of generic goods and services with an unlawful termination - especially when there may be a legal obligation to provide them (e.g. infrastructure by the local government). Although such a link could be inferred it's not explicitly stated. Of course, VTCs can/should be reviewed in light of suitable edits by the questioner that provide clarity.
    – user35069
    Sep 23, 2021 at 15:50
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    @RockApe Some of that could potentially be part of an answer.
    – Ryan M
    Sep 23, 2021 at 16:04
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    @Rock Ape IMO none of that (except the completion of the title, (which IMO is obvious and which I will do) is needed for a valid question. The lack of any such connection might well be an element in a negative answer. Sep 23, 2021 at 16:12

1 Answer 1

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No

Those things do not constitute "aiding or abetting", nor does the Texas law define them as such.

The Actual law

Sec. 171.208 of the law known as Texas SB 8 reads in relevant part:

(a) Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:
(a) (1) performs or induces an abortion in violation of this chapter;
(a) (2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this chapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this chapter; or
(a) (3) intends to engage in the conduct described by Subdivision (1) or (2).

Interpretation

If the actions described in the question are covered by this law, it could only be if the fall under the category of:

conduct that aids or abets the performance or inducement of an abortion

which means that the definition of "aids or abets" is crucial. There is no definition given of this phrase in SB 8 except what is provided in 171.208(a)(2). Therefore "aids or abets" must be taken to have its ordinary legal or general meaning, modified only by the provision that "whether the person knew or should have known" is not relevant to this law.

The LII page on "Aid and Abet"" reads:

To assist someone in committing or encourage someone to commit a crime. Generally, an aider and abettor is criminally liable to the same extent as the principal. Also called "aid or abet" and "counsel and procure."

The entry on "Aid and Abet" in the Legal Dictionary section of The Free Dictionary reads:

To assist another in the commission of a crime by words or conduct.

The person who aids and abets participates in the commission of a crime by performing some Overt Act or by giving advice or encouragement. He or she must share the criminal intent of the person who actually commits the crime, but it is not necessary for the aider and abettor to be physically present at the scene of the crime.

An aider and abettor is a party to a crime and may be criminally liable as a principal, an Accessory before the fact, or an accessory after the fact.

The definition from the Macmillan Dictionary reads:

to help someone to commit a crime

The definition given by USLegal reads:

To aid and abet means to assist another person in the commission of a crime by words or conduct actively, knowingly, and intentionally. In a criminal offense, a person who aids and abets in a crime, participates in the commission of the crime by performing some overt act or by giving advice or encouragement. The person should be sharing the criminal intent of the person who actually commits the crime. However, it is not necessary for the aider and abettor to be physically present at the scene of the crime, or take part in the actual criminal offense ...

The definition given by The Phrase Finder reads:

To help and encourage, usually in the commission of a crime or anti-social act.

All of these definitions include the idea of one who helps, encourages, or assists in the commission of a criminal or wrongful act. Most of them include that this help must be given knowing that the act is criminal.

I do not think that one could rationally or legally say that the provision of utility services, general infrastructure, or medical equipment constitutes "aiding or abetting" the conduct prohibited by Sec. 171.208. Such services or support are not provided specifically to help with the acts prohibited. If providing utility services constitute "aiding or abetting" then utility companies could be charged as accessories to any and every crime that does not take place in a dark, unheated, unplumbed building, or in the outdoors. Insider trading, for example often takes place in the criminal's own office, but no one charges the utility company that provides power to such an office as accomplice to the crime.

I think this question shows a misunderstanding of what "aid or abet" means. it does not refer to any service or equipment that a criminal may find helpful, but only to acts specifically designed to help in the criminal act, and usually to acts committed knowing that they are aiding a crime.

Nothing in SB 8 changes this.

There may be problems with SB 8, but the possibility of charging utility companies, or providers of medical equipment as accessories is not one of them.

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  • Would it make a difference if someone was providing funding to (or maybe helping with patients medicare claims for) an abortionist who said in a newspaper they had violated the law and would again even if that support wasn't specifically for illegal abortions?
    – ColleenV
    Sep 23, 2021 at 18:45
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    @ColleenV we can't be sure until such an issue comes up in an actual case, but as I read the law it only applies to help afforded to one or more specific instances of abortion, not general help to a doctor or clinic who performs abortions. Help with a specific patient seems likely to be covered under the law, assuming that the law as a whole is upheld, which no one can know yet. Sep 23, 2021 at 18:58
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    @ColleenV I would think that such a defense fund could operate without exposing the fund, its organizers or contributors to liability under SB 8, that is not "paying for or reimbursing the costs of an abortion" as I see it. But again one cannot be at all sure until ther is relevant case law to cite. This is a law intentionally procedurally different from all prior law on the subject, and how the various courts involved may interpret it is simply not known with any assurance at this date. [...] Sep 23, 2021 at 19:19
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    @ColleenV [...] The law was designed to create uncertainty so as to deter providers and those intending to assist women seeking abortions or providers willing to offer them. It appears that the advocates of the law had expected fear to be enough to stop essentially all abortions in Texas. Sep 23, 2021 at 19:20
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    Not just that, but carefully crafted taking into account precedent so that the law would be difficult to challenge. It will make for some interesting court cases if they make it past the procedural hurdles before a new legislature repeals it.
    – ColleenV
    Sep 23, 2021 at 20:16

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