Under Texas abortion law, clergy could face harsh punishment for giving spiritual advice

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Clergy could face tens of thousands of dollars in 'damages' for discussing abortion with church members under Texas's new extreme abortion ban.

In tears, a college student called Rev. Lauren Jones Mayfield from her dorm room. The teenager was distraught — her conservative parents had just disowned her over her choice in a partner, and after an unexpected pregnancy, she was in need of spiritual advice, Mayfield recalled.

"She was scared to death that God was going to abandon her like her parents had," Mayfield, a Louisville pastor, told the American Independent Foundation. "And so she was reaching out to me as her faith leader for some reassurance, for a light of hope. In hearing her story and in sitting with her in that moment and holding her tears with her, she, I hope, received from me a light of acceptance and grace and compassion and was able to make a decision that was best for her and for her educational pursuits."

"And she knew that God was with her as she went to seek abortion care," she added.

Counseling members of her community is not unusual for Mayfield. But if she offered similar guidance now to someone in Texas considering terminating a pregnancy, under S.B. 8, the state's restrictive new abortion law, she might find herself facing burdensome lawsuits, and potentially owing ten of thousands of dollars in "damages," as the law deputizes private citizens to sue anyone who "knowingly engages in conduct that aids or abets the performance or inducement of an abortion." 

"Instead of the state punishing someone criminally, [S.B. 8] outsources enforcement to private citizens — literally any private citizen — who has standing to sue," Mary Ziegler, author of "Abortion and the Law in America: A Legal History, Roe v. Wade to the Present," said in a phone call.

Beyond clergy, experts say the law could implicate  doctors, abortion clinic staff, nonprofits that raise money for procedures, and even Uber and Lyft drivers who take patients to their appointments. S.B. 8, which went into effect on Sept. 1, outlaws all abortion in Texas after six weeks' gestation, before many even realize they're pregnant.

While the Department of Justice announced a lawsuit against Texas Thursday to prevent the enforcement of the law, S.B. 8 is written in a way to make it more difficult to strike down and experts say they're uncertain how legal challenges will play out in the courtroom.

Ziegler thinks that counseling by clergy will likely be protected under the First Amendment's guarantees of freedom of speech and freedom of religion. But the promise of those protections may not be enough to make clergy feel safe, she said.

"The tricky thing for clergy members is going to be: Where is the line, what can I do that's just counsel, and when have I crossed the line into conduct or something that's more tangible encouragement?" Ziegler told the American Independent Foundation. "And that's going to have a chilling effect, because clergy are going to be wondering, 'Oh, did I just do something wrong that's going to expose me to liability?' So they may not even come close to the line. And that's the point of the law."

"This law is written so broadly that there's nothing really stopping someone from giving it a shot," she added. "So it's not likely that clergy are going to be held liable, it's more likely that they're going to have nuisance lawsuits. … You could get hauled into court in a county in Texas nowhere near where you live by some random person who's ultimately probably not going to win any money but has no incentive not to sue."

While S.B. 8 represents a new extreme in the push to criminalize abortion and those who help people access them, clergy have long played a role in the battle for reproductive rights.

In 1967, a group of 19 ministers and two rabbis formed the Clergy Consultation Service on Abortion.

"Before Roe, there was a whole movement of clergy that organized across the country and provided access to illegal clinics or helped women who were in states where it was illegal get places where they could," Rev. Rebecca Todd Peters, a professor of religious studies at Elon University and author of "Trust Women: A Progressive Christian Argument for Reproductive Justice," told the American Independent Foundation.

The group grew to 1,000 clergy across North America over the following years until the Supreme Court legalized abortion in 1973 with Roe v. Wade.

Peters also notes the broad support for abortion among those who say they are religious, often overshadowed by a vocal minority of religious people who oppose it. While only 21% of White evangelical Protestants polled by Pew this year want abortion to be legal in all or most cases, 55% of Catholics do, along with more than 60% of White nonevangelical Protestants and Black Protestants.

"For some people, there is a theological belief that life begins at conception, that that human life that begins at conception is equivalent to a baby," Peters said. "But that's a theological belief, and it's not a theological belief that all Christians share — certainly not a theological belief that people in other faith traditions share. So what we're doing is codifying a minority religious belief and making that the law of the land."

Vice President Kamala Harris has stated she wants the exact opposite. "On the issue of laws, the President has said, I have said, and I will repeat myself: We need to codify Roe v. Wade," she reiterated before a roundtable with reproductive justice advocates on Sept. 9. 

Mayfield said she expressed her concern to Harris at the roundtable about Texas' draconian law and the threat of other states following suit. She said Harris was receptive and promised the Biden administration would use every lever available against the law.

"I certainly hope that we're going to have some success in our fight here and in our pushback on this law," Mayfield said. "The Biden administration took a really important first step yesterday, and I think it's imperative that we continue to work to get Texans the reproductive care that they need now. And that's going to take all of us with our boots on the ground working tirelessly."

Published with permission of The American Independent Foundation.