Kuo: Texas Moves Closer to Making Handmaid's Tale a Reality

Gov. Jim Abbott is expected to sign new Christian Right extremist bill to create bounties for those seeking, and helping women access abortion pill, whether in state or ut

By Jay Kuo /The Status Quo

We’ve always known that the Dobbs case was just the beginning, and that “leaving abortion to the states” was never going to satisfy the radical Christian right.

Now, with a new bill expected soon to become law, they have set their sights on Texas and opened a dangerous new front in their national war on abortion rights.

Texas already has one of the most restrictive abortion laws in the country. Abortion is illegal there except in rare medical emergencies, with no exception for fatal fetal anomalies or for rape or incest.

So it’s no surprise that those seeking to terminate their pregnancies have turned to abortion medication, often through mail-order services offered by out-of-state providers. Now the state of Texas is moving to close off that option.

Both house of the state Legislature passed, and sent to Gov. Greg Abbott, a measure to allow nearly anyone to sue doctors, distributors, and manufacturers of abortion medication anywhere in the country—and to collect cash bounties. Abbott is expected to sign it into law.

We need to understand what this new law is, what it hopes to accomplish, and what it could mean for abortion access for millions tripped inside the anti-abortion red states.

Bounty hunting. If the idea of paying bounties to plaintiffs seeking to penalize abortion service providers sounds familiar, that’s because Texas has successfully run this playbook before. The current bill targeting medical abortion is similar to S.B. 8, a law passed in 2021 that effectively banned in-state abortions by empowering citizen lawsuits against abortion providers.

Abortion was still legal across the country at the time, but the Supreme Court signaled which way things were headed by stand while litigation proceeded, even though the law supported a blatantly unconstitutional restriction.

The current bill allows plaintiffs to collect a minimum of $100,000 against out-of-state medication providers, even if no abortion occurs.

Under the bill, only a pregnant woman directly seeking the abortion or her relatives could claim that amount. Any other litigants would be required to donate any case proceeds over $10,000 to a charity of their choosing—but that means there is still a baseline $10,000 incentive in place for private parties to sue for.

The law specifically targets abortion medication providers, and not the women who take the pills. But the law’s lines get very fuzzy very quickly. For example, a parent of a child, who attempts to call an out-of-state provider on her behalf, would potentially be liable.

There was this remarkable exchange on the Texas House floor, reported by the New York Times:

“An abortion does not have to occur for there to potentially be enforcement?” State Representative Erin Zwiener, a Democrat from San Marcos, asked during debate on Thursday.

“Correct,” said State Representative Jeff Leach, a Dallas-area Republican who sponsored the bill.

Ms. Zwiener presented a hypothetical situation in which the parent of a pregnant daughter called a clinic outside of Texas and inquired about mail-order abortion pills. “That person could potentially be liable under this type of lawsuit?” she asked.

“Correct,” Mr. Leach said.

The chilling effect this would have upon the availability of abortion medication in Texas is hard to overstate.

Blue state shield laws? Many blue states, such as California and New York, do have so-called “shield laws” that protect providers against out-of-state liability.

Such laws were put to a big test over the past year.

In December of 2024, Texas state Attorney General Ken Paxton filed a civil action against New York-based Dr. Margaret Daley Carpenter for prescribing and mailing abortion medication to a Texas resident via telehealth. In February, after Dr. Carpenter failed to appear in a Texas court, a judge found her in default, fined her $113,000 and ordered her to stop sending abortion medication to Texas.

A New York clerk refused to enforce the judgment against the doctor, citing the state’s shield laws. Taylor Bruck, the acting clerk of Ulster County based in Kingston, New York, said he would not grant Texas’s motion seeking to enforce the order and refused to allow Texas to file a summons to force Dr. Carpenter to comply with the ruling.

“In accordance with the New York State Shield Law, I have refused this filing and will refuse any similar filings that may come to our office,” Bruck said in a statement.

Louisiana also took its shot at Dr. Carpenter, but by using the threat of criminal sanctions.

In January, a Louisiana grand jury indicted Carpenter for providing abortion medication to a minor in the state via telehealth. The charges included “criminal abortion” via abortion-inducing drugs. The state issued an arrest warrant for Dr. Carpenter, but Gov. Kathy Hochul refused the extradition request, citing New York’s shield law.

“I will not be signing an extradition order that came from the governor of Louisiana—not now, not ever,” Gov. Hochul said at a news conference.

So what’s new about the Texas bill?

The new bounty hunter bill attempts to defeat blue state shield laws in part by declaring that such laws cannot be used as a defense against suits brought under the Texas law. That makes it harder for providers to defend themselves in Texas court, which will likely lead to more default judgments like we saw in the case Ken Paxton brought.

But that still leaves the matter of enforcement. Providers who have any assets inside of Texas—or other red states that play along—might be at risk of forfeiture. This could start to create a patchwork of laws limiting where providers can and cannot travel, operate or hold assets.

“It’s pushing up against the limits of how much a state can control,” observed Marc Hearron, associate litigation director of the Center for Reproductive Rights. “Each state can have its own laws, but throughout our history, we have been able to travel across the country, send things across the country.”

Just the beginning. Believe it or not, radical Christian fundamentalists and “right to life” groups had pushed for an even harsher law than the one ultimately adopted by the Texas House. As the Houston Chronicle reported,

The most far-right group, Abolish Abortion Texas, says it doesn’t go far enough because it protects pregnant women from litigation, “thereby denying equal protection of the laws.” Texas’ abortion bans also protect the pregnant woman from liability.

“While there are some women who are coerced into abortion, the vast majority of women who obtain abortions are willfully choosing to murder their preborn children,” JR Haas, vice president of the group, said in a statement. “Our laws should deter everyone in Texas from murdering preborn children, whether they are third-party abolitionists, the fathers of the children, or the mothers of the children.”

Even with the harsh new bill in place, such groups are likely to continue to press for more draconian restrictions and criminal penalties upon women choosing to terminate their pregnancies using medical options.

Texas also isn’t alone in passing this kind of bounty law.

Louisiana has passed a similar measure, and other anti-abortion red states are likely to soon follow suit. This could have a cascading effect, effectively trapping millions of women inside of abortion option deserts. Poor, minority women in particular would be the hardest hit, as they often lack the means to travel out of state to obtain abortions.

Dred Scott-like moment approaches. Legal challenges to the law are expected, and ultimately this will wind up before the Supreme Court, which declined back in 2021 to rule on the constitutionality of abortion bounty hunter laws like S.B. 8.

The high court may not be able to avoid the question for much longer, however, especially as red states grow more aggressive with their abortion lawfare while blue states prepare for battle with their own strong shield laws in place.

The radical majority on our Supreme Court may be steaming toward its own Dred Scott case, considered by many legal experts as the worst opinion ever handed down.

That case involved a Black man considered a slave in Missouri but a free man in Illinois and the Wisconsin territory, where slavery was illegal.

Scott had sued for his freedom after being taken by his “owners” across the state line into a free state. The case highlighted the dangers and repugnancy of having different sets of laws in different states, especially when one set imposed an entirely different definition of personhood for an entire group.

The Dred Scott decision ruled that people of African descent “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution” and set the stage for irreconcilable visions of America, and ultimately civil war, between the states of the Union and the Confederacy.

Bodily autonomy is once again the dividing legal line between the states, but this time with women’s bodies and lives on the line.

And the “states rights” proponents have once again set up two sets of laws, with pregnant women likely soon to have no abortion rights or access at all on one side of the state line.

Attorney Jay Kuo is a board member of the Human Rights Campaign. You can subscribe to his newsletter, The Status Kuo, here.