Texas Pro-Life Bill Fails to Adequately Address Self-Induced Abortion Epidemic
by Bradley Pierce
Introduction
On July 9, Texas Gov. Greg Abbott called a special session of the Texas Legislature to include discussion about “protecting unborn children and their mothers from the harm of abortion.” In response to this call, Republican lawmakers are submitting legislation similar to Senate Bill 2880, known as the Women and Child Protection Act, a bill previously considered during the recent Texas regular session but which failed to pass.
That legislation, sponsored by Texas State Sen. Bryan Hughes, would have relied on expanding avenues of civil liability to attempt to deter those providing abortion-inducing drugs into the state.
At least three similar bills have already been introduced for the special session. Additionally, Senator Hughes has announced his intent to re-file the bill, expected to be Senate Bill 6 and substantially the same as the previous Senate Bill 2880. Texas State Rep. Jeff Leach, who during the regular session carried House Bill 5510, which was identical to Senate Bill 2880, is also expected to re-file the bill. For the sake of simplicity, this article will refer to all of this legislation as the WCPA.
The primary strategy employed by the WCPA would expand private lawsuit avenues of civil liability in a manner somewhat similar to the Texas Heartbeat Act, which went into effect in 2021. The WCPA would not create any criminal liability.
Among other aims, one of the primary strategic purposes of the WCPA appears to be to set up a federal court challenge to state “shield laws.” Currently in twenty-two states, these laws protect abortion pill providers, among others, from being subject to criminal extradition and civil judgments from other states, such as Texas.
The WCPA legislation has been promoted as “stopping abortion pills,” and proponents say that it “must be passed immediately to stop abortion pill traffickers.”
We project that this legislation would be unlikely to have any material impact on the flow of abortion-inducing drugs into Texas and would produce virtually no reduction of the overall number of preborn children murdered by abortion in the state.
Summary Points
Texas law already bans the provision of abortion-inducing drugs.
Texas law already establishes multiple avenues of civil liability against providers of abortion-inducing drugs.
While the WCPA would add to existing avenues of civil liability, it would not guarantee enforceability.
Even if federal courts allowed enforcement, it would not materially reduce the flow of abortion-inducing drugs into Texas due to proven international sources.
The WCPA also denies equal protection, leaves pregnant women exposed to coercion, and cuts off the most effective and enforceable means of addressing the crisis of prenatal homicide in the state.
I. Texas Law Already Bans the Provision of Abortion-Inducing Drugs
Since 2013, it has been illegal in Texas for non-physicians to provide “an abortion-inducing drug to a pregnant woman for the purpose of inducing an abortion in the pregnant woman or enabling another person to induce an abortion in the pregnant woman.”[1]
In 2022, this ban was extended to physicians when the trigger bill became effective after the overturning of Roe v. Wade.[2] The only exception was for physicians dealing with medical emergencies.
Moreover, since 2021, Texas law has provided that a “manufacturer, supplier, physician, or any other person may not provide to a patient any abortion-inducing drug by courier, delivery, or mail service.”[3]
Therefore, current Texas law already prohibits and provides criminal liability for anyone providing abortion-inducing drugs in person or by courier, delivery, or mail.
II. Texas Law Already Establishes Multiple Avenues of Civil Liability Against Providers of Abortion-Inducing Drugs
In addition to criminal liability, current Texas law also provides civil liability through at least three methods against anyone providing, manufacturing, or distributing abortion-inducing drugs.
A. A Parent May Assert a Wrongful Death Action
Since 2003, the Texas wrongful death law has applied to the death of “an unborn child at every stage of gestation from fertilization until birth.”[4] It provides liability for anyone who causes an unborn child’s death through a “wrongful act, neglect, carelessness, unskillfulness, or default.”[5] Note that the statute does not allow any claims for the death of an unborn child to be brought against “the mother of the unborn child.”[6]
The statute does have an exception prohibiting claims against “a person who dispenses or administers a drug” that causes the death of an unborn child, but only if done “in accordance with law.” As described above, under current law, dispensing or administering an abortion-inducing drug in Texas cannot be done “in accordance with law”[7] except in a medical emergency situation.
Because the criminal bans discussed in the section above make such actions “wrongful acts,” Texas law already establishes civil liability against anyone who provides abortion-inducing drugs in person or by courier, delivery, or mail. A wrongful death action may currently be brought against abortion pill providers by a parent of the unborn child. In fact, a Texas parent filed such a lawsuit as recently as July 20, 2025.
B. The Attorney General May Assert a Civil Penalty Action
Under existing law, the Texas Attorney General may impose a civil fine of $100,000 per abortion on anyone who unlawfully performs an abortion, which includes “the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant.”[8]
In December 2024, Texas Attorney General Ken Paxton argued that this law provided civil liability against a New York doctor allegedly providing abortion-inducing drugs to a Texas woman.[9] His office won that case by obtaining a default judgment in Collin County. When his office attempted to enforce the judgment in New York, however, officials in the state invoked the state shield law and refused to recognize or enforce the Texas judgment.
C. Nearly Any Texan May Assert a Texas Heartbeat Act Action
Through the Texas Heartbeat Act, nearly any person in Texas may already sue providers of abortion-inducing drugs. This is because out-of-state providers of abortion-inducing drugs are violating the Texas Heartbeat Act by failing to properly determine “whether the woman’s unborn child has a detectable fetal heartbeat” before providing abortion-inducing drugs.[10]
Therefore, current state law already provides at least three methods to sue anyone providing or distributing abortion-inducing drugs into Texas.
III. While the WCPA Would Add to Existing Avenues of Civil Liability, It Would Not Guarantee Enforceability
If Texas law already subjects those who provide or distribute abortion-inducing drugs to both criminal and civil liability in multiple ways, what would the WCPA accomplish?
The WCPA would create several new avenues and incentives to seek civil remedies, while reducing disincentives like exposure to claims for attorney’s fees, as follows:
Creating market-share liability[11]
Allowing for qui-tam suits[12]
Granting the attorney general parens patriae standing for preborn children[13]
Removing potential Anti-SLAPP Protection from defendants[14]
However, as illustrated by the case recently brought by the Texas Attorney General against the New York doctor described above, known as Texas v. Margaret Daley Carpenter, the current problem with imposing liability on out-of-state pill providers is not that Texas law provides no avenue for doing so. As shown, it provides numerous mechanisms, both criminal and civil.
The problem is not winning a lawsuit and getting a judgment in Texas. The problem is enforcing that judgment outside of Texas.
Even if Texas obtains judgments against out-of-state defendants, the same enforcement problems we see in Texas v. Margaret Daley Carpenter would apply since other states would refuse to recognize or enforce Texas judgments under their shield laws.
Of course, the constitutionality of shield laws is uncertain, at best. The Full Faith and Credit Clause of the U.S. Constitution requires each state to recognize and enforce the “public acts, records, and judicial proceedings” of every other state. The Supreme Court has applied this most stringently to final court judgments, which generally must be honored even if they conflict with the enforcing state’s public policy.
Needless to say, the issue of shield laws is expected to eventually end up at the Supreme Court. Passing the WCPA certainly could increase the opportunities to get a case at that level, but because current Texas law already provides other opportunities to get a case in front of the Court, passing the WCPA is by no means necessary to set up a legal challenge to shield laws.
IV. Even If Federal Courts Allowed Enforcement, It Would Not Materially Reduce the Flow of Abortion-Inducing Drugs Into Texas Due to Proven International Sources
Before states enacted shield laws, abortion pills primarily came from international sources outside U.S. jurisdiction, such as the Netherlands, Austria, and India.
Even if the Supreme Court were to enjoin state shield laws and allow enforcement of Texas judgments, abortion pill providers could easily resort to the international channels they had been using previously before shield laws were in place. Note that Texas has no jurisdiction over the mail.
As a lawyer for Aid Access, the largest abortion pill provider, said in 2022, “No state like Texas or Idaho is going to be able to do anything to Aid Access in Amsterdam or Austria. They’re not going to have jurisdiction, and the Netherlands isn’t going to extradite.”
Consequently, even if the Supreme Court were to enjoin shield laws, it would not affect pills being shipped from international sources, which has already been proven to be a reliable supply.
V. The WCPA Also Denies Equal Protection, Leaves Pregnant Women Exposed to Coercion, and Cuts Off the Most Effective and Enforceable Means of Addressing the Crisis of Prenatal Genocide in the State
While the WCPA is aimed at regulating the abortion pill supply, the primary issue is with demand, which the WCPA does not address.
In fact, the bill notably exempts from liability the “conduct of a pregnant woman who aborts or seeks to abort the woman’s unborn child.” As a result, instead of allowing case-by-case consideration of the conduct and mental culpability of women involved in the abortion of their own children, the WCPA provides women with complete impunity to violate it. As a result, the WCPA would have zero deterrent effect on women seeking abortions.
Providing absolute civil immunity for women also creates several other issues.
A. WCPA Denies Equal Protection of the Laws
The Fourteenth Amendment to the U.S. Constitution provides that “no state shall... deny to any person within its jurisdiction the equal protection of the laws.”
In numerous places, current Texas law denies to preborn children the equal protection of state civil and criminal laws by providing complete immunity for all conduct committed by their mothers to cause their deaths.[15]
Not only does this violate the U.S. Constitution, but even more importantly, it violates the law of God, which prohibits showing partiality in judgment.
The WCPA would therefore add to Texas’ egregiously discriminatory course of legislation that effectively denies the full humanity of children who have not yet been born.
B. WCPA Leaves Pregnant Women Exposed to Coercion
Threatening a pregnant woman with violence against her or her preborn child is currently illegal under Texas law. Likewise, secretly slipping an abortion pill into the drink of a pregnant woman is also currently illegal under Texas law.[16]
However, otherwise coercing a woman into an abortion is not currently illegal under Texas law, nor would it be under the WCPA. Because self-induced abortion remains legal for women under the WCPA, the conduct of pressuring women into abortion would likewise remain legal, since pressuring a competent adult[17] toward legal conduct is generally not a criminal offense.
The WCPA therefore fails to address the issue of male partners and others potentially pressuring women into having abortions.
C. WCPA Cuts Off the Most Effective and Enforceable Means of Addressing the Crisis of Prenatal Homicide in the State
The WCPA, as with existing Texas abortion laws, would ensure that women retain a special legal protection to order abortion pills and to use them to willfully murder their own unborn children. This means that the demand for abortions would not be diminished and could even increase because the WCPA would further assure Texas women of the legal protection of such conduct.
Texas judgments that cannot be enforced in other states or countries cannot effectively deter the homicidal conduct of residents there. But Texas laws that can be enforced in this state would effectively deter the homicidal conduct of residents here, including the conduct of the men and others who coerce pregnant women into abortions, as well as the conduct of the uncoerced women who willingly self-induce the abortions of their own children. Yet the WCPA explicitly cuts off the ability to create such deterrence in this state.
Conclusion
To illustrate the main issues with the WCPA, consider this scenario:
Under current Texas law and continuing under the WCPA, the President of Planned Parenthood herself could order abortion pills, take those pills to the steps of the Texas Capitol, and livestream herself taking those pills to murder her own child.
No Texas law would penalize her for it.
Anyone could pressure her into it. But no one, not even the child’s father, could so much as obtain an injunction to prevent her from doing it.
Even if the WCPA made it marginally easier to get federal courts to enjoin shield laws, she could still have the pills shipped into Texas from international sources to her mailbox, over which Texas has no jurisdiction.
The WCPA would protect a woman who willfully murders her own preborn child even from civil liability.
Consequently, the so-called Women and Child Protection Act would be ineffective, practically unenforceable, and ultimately unjust, protecting neither women nor children.
The best way for Texas to truly protect women and children is to pass abolitionist legislation providing equal protection of the laws for all.
NOTES:
Tex. Health & Safety Code § 171.063.
Tex. Health & Safety Code § 170A.002; Tex. Health & Safety Code § 245.002.
Tex. Health & Safety Code § 171.063.
Tex. Civ. Prac. & Rem. Code § 71.001.
Tex. Civ. Prac. & Rem. Code § 71.002(b).
Tex. Civ. Prac. & Rem. Code § 71.003.
Tex. Civ. Prac. & Rem. Code § 71.003.
Tex. Health & Safety Code § 170A.005; Tex. Health & Safety Code § 170A.002; Tex. Health & Safety Code § 170A.001(1); Tex. Health & Safety Code § 245.002.
State of Texas v. Margaret Daley Carpenter, M.D., Petition and Application for Temporary and Permanent Injunctive Relief, Cause No. 471-08943-2024, District Court of Collin County, Texas, Dec. 12, 2024.
Tex. Health & Safety Code § 171.208; Tex. Health & Safety Code § 171.203; Tex. Health & Safety Code § 245.002.
The WCPA provides that if a plaintiff “is unable to identify the specific manufacturer of the abortion-inducing drug that caused the death or injury that is the basis for the action, the liability is apportioned among all manufacturers of abortion-inducing drugs in proportion to each manufacturer’s share of the national market for abortion-inducing drugs at the time the death or injury occurred.” While this would arguably make it easier to sue abortion-inducing drug manufacturers, the concept of market-share liability is highly controversial and has been narrowly applied by courts. Whether it would be effective in this arena is highly uncertain. Regardless, this only makes it easier to get a judgment in Texas against these manufacturers.
Similar to the Texas Heartbeat Act, the WCPA allows nearly anyone to sue an abortion pill manufacturer or provider for an amount of $100,000 for each violation. While this would dramatically increase the class of potential plaintiffs, this new cause of action would be similar to the civil fine authority already held by the Attorney General discussed above. Even if they won the lawsuit and obtained a favorable judgment, a plaintiff would almost certainly encounter the same refusal by other states to enforce the judgment.
The WCPA grants the Attorney General “parens patriae standing,” which means the Attorney General could bring civil actions on behalf of unborn children against abortion-inducing drug manufacturers and providers. Even with parens patriae authority, the Attorney General would still face the same fundamental enforcement challenges, particularly the inability to compel other states to recognize Texas judgments.
The WCPA makes a specific amendment to the Texas Civil Practice and Remedies Code regarding anti-SLAPP, or Strategic Lawsuit Against Public Participation, protections. Texas’s anti-SLAPP statute normally protects defendants from frivolous lawsuits designed to chill free speech by requiring plaintiffs to prove their case early and imposing attorney’s fees penalties on losing plaintiffs. By exempting abortion-related lawsuits from these protections, the WCPA makes it easier to sue people involved in abortion activities. However, while this would make litigation potentially more costly for abortion-providing litigants, the Attorney General’s lawsuit in Texas v. Margaret Daley Carpenter demonstrates that out-of-state abortion providers protected by their state’s shield laws refuse to appear in court and are willing to completely ignore Texas litigation. Also, if cases move to federal court, which often happens with interstate disputes, federal anti-SLAPP protections might apply differently, and federal courts would apply their own jurisdictional analysis.
Tex. Penal Code Ann. § 19.06; Tex. Civ. Prac. & Rem. Code Ann. § 71.003(c)(1); Tex. Health & Safety Code Ann. §§ 170A.003, 171.048(d), 171.064(b), 171.065(b), 171.106, 171.152(b), 171.154(d)(1), 171.206(b)(1), 171.0122(e).
See current case against Justin Anthony Banta in Tarrant County. See also previous case against Mason Herring in Harris County.
Short of threatening violence.
Author
Bradley Pierce
Bradley Pierce is a constitutional attorney and president of the Foundation to Abolish Abortion.