There is “frivolous” and there is what people commonly refer to as frivolous. What some people call frivolous are cases that seem without merit, but has a minimum basis in law that maybe you win if you draw an inside straight.
Prior to this TX law, any suit that you describe in TX or anywhere else would be very, very frivolous. Think the lawyer getting an upheld ethics complaint, contempt, monetary awards to the other side. If a person filed it pro se, it would be dismissed with costs assessed and a stern lecture, and if it continued, you would get held in contempt and sanctions up to and including an instruction to the clerk not to accept anything from you without an attorney certifying it.
The other important point is that this law defines an abortion after 6 weeks as a crime, in defiance of Roe v Wade. Thus it allows someone who performs an abortion, or in any way aids and abets that act, as liable to be sued over the crime they have committed.
Normal laws would say “performing an abortion is a crime” and then follow it with “the punishment the state metes out for this is X”. The court looks at the Texas law and says “the state imposes no penalty for this crime. A temporary injunction is to stop the state from imposing penalties while the case against the law is being heard. Without the state imposing a penalty, there is no grounds for an injunction.”
The question then is what is the appropriate court response to this law - can they simply prevent (enjoin?) anyone, anywhere from filing a suit against any abortion provider? IMHO (worth nothing) the court should prevent the state from calling an early abortion a crime.
Hey, yeah – what are the mechanics of using this new law to sue somebody for helping a woman get an abortion? Nosy person asks one of the medical staff, “Did she get an abortion?” and medical staff already had to say, “We can’t disclose medical details to third parties”, right? How does the nosy person get past this part? Perhaps the nosy person sees a woman go into Women’s Health PA and instead goes straight to court, does the court make the medical people announce publicly the details of the woman’s office visit?
How do would-be litigants get the confidential information to base their suit on?
Presumably they 9random Joe Blow) file a suit with the minimal information they have - “X was seen going into a facility where abortions are performed”. If the defendant cannot respond with a counter submission “abortion did not happen” then they would likely lose by default. (And lying to the court is serious business if it is ever found out.) So they counter “no it did not happen”. Then the lawyers for plaintiff file for discovery(?) and subpoena records. Since an abortion after 6 weeks is defined as a crime, presumably privacy does not apply?
(Which brings up the question - if the doctor in question is also a lawyer, could they apply lawyer client privilege? Obviously if this were an actual crime, maybe confidentiality does not apply)
Plus they can depose the attending nurse, the receptionist who scheduled the appointment, any supply lists or medical service… these procedures don’t magically hide themselves.
your real question, which unfortunately nobody here can answer, is “how specific does the information have to be for someone to file a suit?” Short answer is “it depends on the judge…”
Privacy/privilege is never absolute. Also, in the case of an MD/JD, that professional would not be able to invoke JD privileged communication about actions performed while wearing her MD hat. Performing a medical procedure isn’t in a JD’s scope of practice. This issue of separating functions under different roles arises a lot for people with dual qualifications or job roles.
Yeah, this! Moreover, was standing a concept to be analyzed and tested in delivering justice (what I always supposed), or are there a bunch of laws listing all the things somebody can be sued for and which characters in the case do or do not have standing to bring the suit?
Sure, new statutory law overrides common law all the time.
Not at the federal level, but at the state level, apparently yes. There must be some sort of constitutional due process argument against it or something, but I’m not enough a constitutional lawyer to formulate one myself.
I don’t think the argument that this law is unconstitutional is based on the unusual structure of the law-- The argument that it’s unconstitutional is based on the fact that it’s outlawing abortion, contrary to Roe v. Wade.
We’ll see. I have a feeling when this all settles out, it won’t be decided on the holding of Roe v. wade which has a lot of language about governmental restriction of abortion.
Exactly. People can sue because the “aidors and abettors” are aiding and abetting an abortion after 6 weeks, which this law defines as a crime. If SCOTUS rules that Texas cannot define that as a crime, any grounds for suing disappear.
But the other question is interesting as well. Can a law reverse the very basis of common law, that you must have valid standing to sue in civil court? To me (IANAL) that would be like redefining the law to allow second hand hearsay evidence as testimony, or allowing testimony without danger of perjury, or presuming someone guilty unless proven innocent, or changing the law to take effect retroactively, or some similar subversion of accepted rules of basic due process.
Changing the law to take effect retroactively, you can’t do, because the Constitution says you can’t do that. All those other things you mentioned as “fundamental”, though, it never occurred to the Founding Fathers to mention, so you can do them. Laws overturn Common Law all the time, and there’s no provision for “but this is a really important part of common law”.
Again, people are conflating the federal standing standard (say that three times fast) with state standing standards (again). Texas or California or West Virginia can give whoever they want standing in their own courts. It isn’t “upending” anything to do so. Many statutes give people standing to sue for things, typically “taxpayers” in a municipality about the issue du jour in 19-whatever year it was passed.
I see your point. But even then, the example suggests the taxpayer must demonstrate some detrimental impact to themselves personally (even if marginally) beyond what some random non-taxpaying non-resident would experience.
I guess the point would be that nobody has ever defined all 7 billion residents of earth as having standing to sue regardless of the personal impact, so whether this is acceptable is not decided law?
Isn’t that the whole idea behind qui tam statutes? Which go back to the earliest of English law (and thus form part of the "very basis of common law’).
Yep. And the Feds, usually sticklers for standing compared to the states, have a qui tam provision in the False Claims Act to induce people who know about padded or fraudulent federal claims to sue on behalf of the Federal Government and keep a percentage of the amount recovered for the Treasury.
As Chronos said, the problem isn’t Texas declaring something a public interest that people with no personal interest or stake can sue about, it’s the thing that Texas has declared to be such a public interest. (Also somewhat problematic is the unbalanced provision for costs, where loser pays winner’s costs if the winner was plaintiff but not if the winner was defendant).
In Calder v Bull, the SC interpreted the constitution to only prevent ex post facto laws in a criminal context, not a civil one. Since the Texas law is a civil law, it’s not a slam dunk like you would suggest that making the law retroactive would have been automatically unconstitutional.
IANAL and I am not familiar with this aspect of the law, but don’t defendants typically file countersuits to recoup costs and possibly damages if the plaintiff loses their case?