It doesn’t, but that seems to be irrelevant to this Texas law (assuming it holds up).
The more I hear about this, the more upset I get. I heard that most or all of the clinics are already turning women away, even if they are under 6 weeks pregnant, out of fear of being sued.
And The Court remains silent?
A couple more interesting nuggets:
(> 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.
So yeah, they are forbidding the doctor from showing an undue burden by arguing that the accumulation of lawsuits collectively will be an undue burden. He must prove that the lawsuit against him supplies an undue burden which it will clearly not because the woman can go to other abortion providers.
Also venue is proper, in part:
- the county of residence for the claimant if the
claimant is a natural person residing in this state
So they can shop for a plaintiff who lives in a rural county with a conservative judge who will side with them all of the time, even if the abortion activities took place in Austin or a liberal area of the state.
It also repeals this entire law if Roe is overturned and reverts back to its prohibition in all cases except to save the mother’s life.
The argument has surface appeal. Who should the Court enter a judgment against? The state? They are saying fine, go get an abortion, we aren’t stopping you. What do you want us to stop doing?
Here is the cite:
It looks as if any person in the country, except TX state officials, can bring these suits. And further, an insurance company who covers a woman’s abortion is considered to be in violation of the law and can be sued.
I guess if this passes muster, they’ll pass a new law banning it altogether, using the same mechanism. Do you know if other states have this kind of ability to define who has standing?
IMO, this statute doesn’t get Texas out of a judicial challenge, it just precluded a federal lawsuit challenging it before it took effect.
If state officials were enforcing it, a clinic or a pregnant woman wanting an abortion could sue the official tasked with enforcing the law (such as the state Attorney General or prosecutors) to enjoin them from enforcing it. But with this statute and its provision for private persons suing to enforce it, there’s arguably nobody to enjoin from enforcing it until somebody actually sues somebody under the statute.
But the statute at issue has taken effect, and it’s clearly state action constitutionally because nobody would have this broad standing to sue (and collect a windfall!) for providing or assisting in an abortion unless the Texas statute – that is, the Texas legislature, that is, the State of Texas – gave it to them. Worse comes to worst, the statute would be challengeable once a judgment was entered against someone under the statute, as it’s certainly state action for a court to order someone to pay money.
TL, DR: I don’t think passing a statute that creates a private cause of action will be a successful dodge of judicial review.
Edited to add: I don’t want to go digging for it, but I recall an article (Texas Tribune?) to the effect that the proponents of this statute weren’t under the illusion it was unchallengeable. They just want the cases to start as enforcement suits in Texas courts, then challenged on appeal through the Texas courts, and then to the U.S. Supreme Court rather than starting as federal suits to enjoin enforcement of a state law for violating Roe v. Wade and its progeny.
AFAIK, every state legal system defines standing through their constitution, case law or statutory law. I don’t have a number of “strong” states or “lenient” ones.
For the federal courts, the Constitution says that the federal courts only have jurisdiction to hear “cases or controversies” which the Court had interpreted very strictly holding that there must be true adversaries and a harm done to a party that can be corrected through a favorable ruling. It has struct down attempts by Congress to give potential plaintiffs rights to sue when they don’t show this harm.
As I keep reading it, it gets worse. A judge may not award a defendant costs and fees for any reason. Thus, there is nothing prohibiting bad faith lawsuits against every abortion performed (as long as an attorney can make up a half assed reason not to lose his bar license for frivolous complaints). I’ll bet that zero abortion doctors will remain if they are spending most of their time and money on attorneys and having their depositions taken, and showing up for a hearing in a county all the way across the state.
The Court should overrule Roe, but it should not allow this tragedy of a law that endangers all other rights.
If I were a pro-choice group I’d find a doctor willing to play along, have a woman who wants an abortion get one from that doctor then sue the doctor.
Get an injunction in place fast until the case can be adjudicated.
What would that accomplish? Even if the woman made a disaster out of the court hearing and the doctor wins, he still doesn’t get money, was out of money for attorneys fees, and his time in participating in the law suit. And he could just be sued again the next day for more abortions that he performs.
The Respondents make a pretty solid argument that the Plaintiffs have no standing or subject matter jurisdiction to even be in court.
A test case could get the law off the books ASAP. The clinic/provider does the one abortion for the test case then ceases all activity until the law is ruled unconstitutional in state court. I read on SCOTUSBLOG,
If the abortion providers are sued in state courts for violating S.B. 8, the state assured the justices, they can defend themselves by arguing that the law is unconstitutional.
~Max
Sure, that might work, but it would take time. You’re going to have conservative judges upholding the law and liberal ones striking it down, so you would need the state appeals court to give an opinion. And in the meantime, all of the abortion providers go out of business.
They will need to choose jurisdiction wisely, but chances are the existing clinics are strategically located in areas with ‘friendly’ judges that would possibly fast-track the case. People in need can drive, I guess that’s better than nothing.
As you say it will be kicked up to the appeals court, which is unavoidable. But what is the alternative? Somebody has to start the ball rolling. The pro-life lobby is perfectly content letting all the clinics play wait-and-see until they run out of funds and close shop.
~Max
Why can’t they get an injunction which ceases enforcement of the law until it is decided in court?
Two problems.
- The injunction will be local only.
- The appeals court will probably act quickly to stay the injunction.
~Max
As I understand it, the law penalizes providers for abortions that are performed during the “law-still-being-reviewed” phase IF the law is later upheld as constitutional. No provider wants to take that risk.
That part is plainly unconstitutional (ex-post-facto) IMO.
~Max
Well, as I noted above, the claimant can pick the county (if he lives there)! He can live on one side of the state and file suit in his own county and make the provider travel across the whole state. And venue cannot be changed unless all parties agree.
So I would foresee (if they haven’t done it already) line up a list of Plaintiffs in Tumbleweed County where the judges are conservatives and just start filing every suit there for every abortion that is performed.
Your trick of having the county where Austin is in having a case filed as a sham by a pro-choice supporter would cause a conflict and in the next year or two, the appeals court decides it. All the while abortion providers are in a caravan to and from Tumbleweed County.
I’m not sure that ex post facto actually applies here, but maybe UltraVires or another lawyer can clarify.
Suppose that a law is passed in July that makes tobacco sales illegal. The law is immediately challenged and isn’t upheld by SCOTUS until December. Then the authorities promptly begin arresting and charging everyone who sold tobacco between July and December.
The law technically already came into force in July, so tobacco was promptly illegal once it did. The fact that it wasn’t formally upheld until December doesn’t make the tobacco sale any less illegal - I think that’s the logic. Ditto for abortion here.
Again, I don’t like this Texas law, but I don’t see how it violates ex post facto.
Generally speaking, yes, that is how it works which is one reason why they are breaking their necks at SCOTUS to get an injunction so the law doesn’t go into effect.