Texas Abortion Case

There will all but certainly be some entity that forces a test case. I assume it’s already underway.

If I understand things correctly, even helping someone obtain an abortion in another state could put you at risk of being sued.

It’s rather stunning that someone utterly unconnected with a case could just file a lawsuit. Where are their damages? It would be like me suing neighbor A because neighbor B was injured on A’s property.

I’m seeing a lot of stories on twitter from women who were more than 6 weeks pregnant when they learned their baby carried a fatal diagnosis like triploidy. So they made the very difficult choice to abort. Will this law force such a pregnancy to continue? If so, it’s even more repugnant.

I see no exceptions for fetal abnormalities, even ones that guarantee death. The only exceptions are for “medical emergencies”, which require extensive documentation.

You can read the bill here: https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00008F.pdf#navpanes=0

The entire meat of it is at the top - almost everything else is lawyering to avoid the obvious Constitutional problems. Which lawyering the conservatives on SCOTUS seem to have bought, at least for now.

This is making me feel sick. Am I being ridiculous?

No, it’s a pretty reprehensible law. I’ve mentioned in the other thread going on that I’m pro-choice but that I think abortion is immoral, and I oppose legal abortion after fetal viability, “without good cause.” That makes me somewhat objectionable to both pro-choice and pro-lifer people, but I can’t see it as being appropriate for the State to require you to undergo serious medical risk to carry a fetus to term.

I don’t live in Texas and won’t be needing any more abortions, but it does kind of feel like the whole world’s turning to shit right now.

FWIW I also would not have granted the injunction. Sec. 1983 is picky about injunctions against judges and I don’t think it is a valid vehicle in this particular case. Federal law is deficient in protecting the people from this kind of crafty legislation.

A Bivens claim might have been possible, who can say?

After a doc is actually sued, I think there is a path forward with sec. 1983.


Looking at it today, it’s even worse than that. No lawyer who argues against the state’s regulation of abortions can get paid. Even in they win, they are still responsible for the prevailing party’s legal fees.


I agree hitting the hotlines won’t matter. But making a lot of suits might. Using the law against those who created it is a good idea.

You say upthread about the conservative majority in the Supreme Court being used to override laws. But the way to do that would have just been to take a regular abortion case and overturn Roe. Texas pushing this law seems like it would actually make it more difficult, due to the aforementioned consequences if this is allowed to stand. It actually puts pressure on them to call this unconstitutional for reasons beyond the abortion issue.

I also think they must be very confident that their voting laws are going to sufficiently suppress the vote, as they’ve just lit a fire under the Democratic side, as well as given them a lot of those who would previously not bother voting. Abortion is also an issue that affects young people, pulling them into voting.

They can scare out abortion providers now. But they may very well lose the war.

If they win, they are the prevailing party. They can get paid their own legal fees by their client. But what they would lose is that if they argue that this or that abortion regulation is unconstitutional and lose (let’s say SCOTUS overturns Roe) then they client and the lawyer are on the hook for all of the legal bills.

And you know another consequence of that? No more Jane Roe or Doe (Doe v. Bolton). We need to collect from your client, so publish her name.

It would appear the courts lose their prerogative to make the claimant pay the legal fees, esp. in frivolous cases.

But my point is that the text says the attorneys who argued in court against state regulation of abortion are responsible for the prevailing party’s legal fees. It seems to me this precludes the non-attorney clients from paying the prevailing party’s (their own) legal fees.


It says the attorney and the client shall be joint and severally liable.

Okay, nvm.


Not a lawyer by any stretch of the imagination, but reading through the law, with the exception of the allowing an abortion if the mothers life is in danger, every bit of legalese seems to be directed towards imagining new and different ways they can tilt the scales of justice in favor of the plaintiffs and against the defendant. This isn’t so much a law as a diatribe.

You spend $5K to sue Greg Abbott. He spends $5K to defend it. Seems like a wash since he has more money than you. Though I agree it might force some questions about who has standing or what sort of suit has merit.

Why do you think that would have been “the way to do it?” By doing this silently at midnight off the shadow docket, the conservative majority were able to do exactly what they were selected to do, while sidestepping a lot of the public blowback on themselves. I honestly can’t see what strategy would give them a better outcome.

Yes. To reiterate what I said upthread, court conservatives are behaving as if Republicans will have a permanent judicial and legislative majority. They’re in a position to help make that happen. Think they might know something that we don’t?

You can read this latest decision as meaning that this issue is so complicated that it needs a better vessel to decide it more clearly, sure. A simpler reading is “we’ll make whatever cockeyed rulings we like, because we’re never losing power again, go kick rocks if you don’t like it.”

And it’s hard to see how they’re mistaken on that, honestly.

The shadow docket is pretty normal for emergency applications where you’re asking the court to quickly rule on something outside of their normal court season. Also something that has not been at all resolved / fully litigated by the lower courts yet.

Republicans lost the White House and the Senate in 2020 and don’t control the House. The idea they are set up for “permanent governance” is silly and wrong. Democrats have found ways to win in areas that aren’t ultra-urban and ultra left, including winning with Democrats like Warnock, Conor Lamb, John Bel-Edwards etc. We have a Federal system of government, if you want to undermine Republicans in states like Texas you have to run Democrats that people in Texas will vote for, this was actually well understood until the 2000s when Dems seemed to abandon trying to run moderate candidates in most of the country and only realized after 2010 just abandoning the state legislatures of 35 states wasn’t smart.

Agreed. And I think a pro-choice person like you who would not have granted the injunction and a pro-life person like me who very well might shows that this isn’t some nefarious partisan judicial hackery.

The overarching point that TX kept making (the briefs are a good read) is “Who do you want to sue?” then “What are you going to ask that person to do redress your harm?” And buried a little bit, “What is your harm?”

You want to tell the AG not to enforce the law? He says wonderful, because he will do nothing. You want to tell the state judge not to hear the case or the clerk not to file any SB 8 petitions? Years and years of case law says you cannot do that. You can’t block the courtroom door. The procedure is that they file their pleading and then the judge rules. The clerk does nothing except clerical acts. And more importantly, you can’t stop the wheels of justice because someone might file an unconstitutional pleading? People file unconstitutional pleadings all the time and they are heard on their merits.

Who says the judge will rule against you? Who says anyone will even file something in his county? Maybe the judge agrees with you and will dismiss an SB 8 suit outright. But you don’t know, so why are you suing someone who very well may give you everything you are asking for?

Finally, they sued a private citizen who stated that he had no intention of filing suit to enjoin him from filing suit. That is a speculative injury that doesn’t confer standing.

It has been law for a long time that you can’t manufacture standing just to test the constitutionality of a law. And it isn’t even clear that with a proper defendant you have standing because nothing in the law denies a woman the right to have an abortion. Nobody has a right to assist another person in having an abortion, nor make a living on abortions.

So, Plaintiffs, what do you want this Court to ask these defendants to do or stop doing that has injured you?

Your last point is wrong–it’s well established that you can’t just ban doctors from providing abortions and say “abortion rights aren’t infringed.” There’s lots of Roe and Casey derived litigation around that point.

The rest of it I agree with though. There are organizations with vast resources out there that can afford to take the hit of “losing” one of these cases, that likely need to engineer a deliberate test case to actually get sued under the law, and then litigate it up through the appellate system to test the constitutionality of it.