Fact-check: Does Texas abortion law allow rapists to sue their victims for getting an abortion?

Nusaiba Mizan, Austin American-Statesman
·4 min read

Days before Politico reported that a leaked U.S. Supreme Court draft opinion indicates that a majority intends to overturn Roe v. Wade, U.S. Rep. Alexandria Ocasio-Cortez, D-N.Y., tweeted an alarming claim about victims of rape in Texas.

Ocasio-Cortez was addressing the claim from right-wing politicians that "the extreme left is taking over." To that, Ocasio-Cortez asked "WHERE" in all caps.

“In Texas, Republicans passed a law allowing rapists to sue their victims for getting an abortion," Ocasio-Cortez tweeted.

Texas has some of the strictest laws restricting access to abortion. As discussion and concern rises for Roe v. Wade — the landmark 1973 ruling that established a right to abortion — and what this means for Texas, let's look at Ocasio-Cortez's claim.

More: Law banning most abortions in Texas goes into effect, absent Supreme Court intervention

Texas law targets abortion providers

We reached out to Ocasio-Cortez's media office and campaign email addresses but did not hear back.

She seems to be referring to Senate Bill 8, which took effect in September. The law prohibits abortion after six weeks of pregnancy and leaves enforcement up to the public, allowing any person to sue abortion providers or people who aid or abet illegal abortions. There are no exceptions for pregnancies from rape or incest.

But the law specifically prohibits a rapist from suing: "Notwithstanding any other law, a civil action under this section may not be brought by a person who impregnated the abortion patient through an act of rape, sexual assault, incest, or any other act prohibited by Sections 22.011, 22.021, or 25.02. Penal Code."

This provision is the only limit placed on who can sue under the law.

In addition, Ocasio-Cortez claimed that a victim's rapist could sue them. However, SB 8 permits people to sue providers and those who aid and abet someone who gets a prohibited abortion, not the person seeking an abortion.

In other words, University of Houston law professor Seth Chandler said, the person seeking an abortion could not be sued under this law, but anyone helping them could.

"Now, it is true that the defendant in an SB 8 action may need to prove that the plaintiff wasn't a rapist," Chandler wrote in a follow-up email. "It's not entirely clear (since there are no cases) on whom the burden of proof lies. But to go from that to saying that Texas allows the rapist to sue strikes me as a canard."

Our ruling

Ocasio-Cortez tweeted on April 29, "In Texas, Republicans passed a law allowing rapists to sue their victims for getting an abortion."

The law specifically bars someone's rapist to sue because they sought a prohibited abortion. The law also allows actions against abortion providers, rather than the patient, for procedures past a pregnancy's six-week mark.

We rate this claim as False.

How we choose and rate claims

PolitiFact Texas is a partnership between the American-Statesman and the nonprofit PolitiFact. It works to present the truth without agenda or bias. Journalists set aside opinions to uphold independence and fairness in the fact-checking process.

We look for statements to check online, in TV transcripts, in press releases, and more. When we choose what to fact check, we consider if the statement is rooted in verifiable fact, if the claim could be misleading, if the statement is significant, and if the statement could be repeated and passed on.

Once a reporter reports on the claim, they can suggest a rating to their assigning editor. The rating is ultimately decided by a panel of three editors.

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Our sources

Contact Nusaiba Mizan at nmizan@gannett.com. Follow her on Twitter at @nusaiblah.

This article originally appeared on Austin American-Statesman: Fact-check: Does Texas law allow rapists to sue their victims?