Sec. 171.209.  CIVIL LIABILITY:  UNDUE BURDEN DEFENSE LIMITATIONS.  (a)  A defendant against whom an action is brought under Section 171.208 does not have standing to assert the rights of women seeking an abortion as a defense to liability under that section unless:
(1)  the United States Supreme Court holds that the courts of this state must confer standing on that defendant to assert the third-party rights of women seeking an abortion in state court as a matter of federal constitutional law; or
(2)  the defendant has standing to assert the rights of women seeking an abortion under the tests for third-party standing established by the United States Supreme Court.
(b)  A defendant in an action brought under Section 171.208 may assert an affirmative defense to liability under this section if:
(1)  the defendant has standing to assert the third-party rights of a woman or group of women seeking an abortion in accordance with Subsection (a); and
(2)  the defendant demonstrates that the relief sought by the claimant will impose an undue burden on that woman or that group of women seeking an abortion.
(c)  A court may not find an undue burden under Subsection (b) unless the defendant introduces evidence proving that:
(1)  an award of relief will prevent a woman or a group of women from obtaining an abortion; or
(2)  an award of relief will place a substantial obstacle in the path of a woman or a group of women who are seeking an abortion.
(d)  A defendant may not establish an undue burden under this section by:
(1)  merely demonstrating that an award of relief will prevent women from obtaining support or assistance, financial or otherwise, from others in their effort to obtain an abortion; or
(2)  arguing or attempting to demonstrate that an award of relief against other defendants or other potential defendants will impose an undue burden on women seeking an abortion.
(e)  The affirmative defense under Subsection (b) is not available if the United States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833 (1992), regardless of whether the conduct on which the cause of action is based under Section 171.208 occurred before the Supreme Court overruled either of those decisions.
(f)  Nothing in this section shall in any way limit or preclude a defendant from asserting the defendant's personal constitutional rights as a defense to liability under Section 171.208, and a court may not award relief under Section 171.208 if the conduct for which the defendant has been sued was an exercise of state or federal constitutional rights that personally belong to the defendant.
Added by Acts 2021, 87th Leg., R.S., Ch. 62 (S.B. 8), Sec. 3, eff. September 1, 2021.