Good overview in the WaPo.
The Texas law has so far withstood multiple court challenges by employing a highly controversial legal strategy: empowering private citizens to sue anyone who helps facilitate an abortion after the legal limit. Abortion rights advocates have tried to sue a long list of people in federal court in hopes of overturning S.B. 8, including Texas law clerks, judges and medical board officials — but, in each case, courts found that they were going after the wrong people.
After a month of fielding threats from these antiabortion groups on social media, the abortion funds argued in several lawsuits filed last week that the groups targeting them have identified themselves as the ones enforcing the law — and, therefore, the ones for abortion rights advocates to hold to account in federal court.
In these cases, the Lilith Fund and the North Texas Equal Access Fund are suing the America First Legal Foundation and the Thomas More Society, two antiabortion legal groups, in federal court, as well as two private citizens in Texas state court. Abortion funds, which raise money to help low-income patients seeking abortion care, have been instrumental in helping patients reach abortion clinics in other states since the Texas ban took effect.
The Thomas More Society’s “invocation of, and intent to enforce, S.B. 8 poses imminent and existential threats to the fundamental and constitutional rights of Plaintiffs, their staff, their volunteers, and their donors,” the abortion funds wrote in their court filing on Wednesday.
The Lilith Fund and the North Texas Equal Access Fund are filing these lawsuits to “protect themselves, their staff, their volunteers and their donors from the coordinated efforts by people and organizations across the country that have made it clear they intend to enforce S.B. 8 by filing lawsuits against abortion funds,” said Elizabeth Myers, one of the lawyers representing the abortion rights groups.
[…]
Some legal scholars think the new lawsuits by the abortion funds could pose a threat to S.B. 8 now that various people and organizations have made their intentions clear, said Steve Vladeck, a professor at the University of Texas School of Law, who specializes in the federal courts and has closely followed the Texas abortion ban.
“This case is not hypothetical because these particular defendants are in the process of pursuing various kinds of enforcement actions,” said Vladeck. After six months of trying to block the Texas law, abortion funds are probably thinking: “Now we finally have someone. Get out of our way, let’s go,” Vladeck said.
David Cohen, a law professor at Drexel Kline School of Law who specializes in gender and constitutional law, called the latest lawsuit a “brilliant move.” The abortion funds have built a legal case that “avoids many of the challenging legal problems of the previous lawsuits,” he added.
Even if a federal court judge does block the law, Vladeck said, the injunction will probably only apply to the particular defendants listed in the case. While those specific people and organizations would no longer be able to sue under S.B. 8, any other private citizen could still file a lawsuit.
At that point, Vladeck said, Texas abortion providers will have to decide whether they are comfortable resuming abortion care after six weeks of pregnancy. Abortion clinics and funds could still face other lawsuits, Vladeck said, but a favorable ruling in this case would make them more confident that they would win.
With these cases, Vladeck added, abortion rights groups are “building the defensive position.”
“They’re going to court to obtain a judgment that won’t be completely effective, but will make it easier to defend the lawsuits they will still face.”
See here and here for some background. I found that story on Tuesday, and on Thursday, the Trib had this to add.
“We are hopeful that any judge who looks at this will recognize the civil enforcement mechanism for what it is … and say these cases aren’t really about abortion,” said Elizabeth Myers, an attorney representing the abortion funds.
Instead, she said, their legal challenge is about stopping the “millions of bounty hunters who can sue in a very rigged one-sided court system” under the law’s private enforcement mechanism.
Aspects of this argument have already succeeded in state court, where a Texas judge found the law to be unconstitutional but declined to block it from being enforced. Now, the same lawyers are taking the case to federal court, where challenges to the law have faltered before.
But this attempt will have an advantage that those did not: The federal suits are filed in Chicago and Washington, D.C., rather than Texas, which allows the plaintiffs to avoid the extremely conservative 5th U.S. Circuit Court of Appeals.
The other two suits are filed in state court and have been added to ongoing multidistrict litigation, where all legal proceedings are stayed while the case is appealed.
South Texas College of Law Houston professor Rocky Rhodes said there are potential obstacles to this approach in federal court, but it’s the “best bet” to block the law that he’s seen yet.
“This is a better procedural mechanism to get the case before the [U.S.] Supreme Court … and it addresses many of the issues from the previous challenges,” he said. “And then, of course, a Supreme Court ruling is binding on all state and federal courts.”
[…]
When the Lilith Fund tweeted a request for donations, the Thomas More Society responded by saying “donors could get sued under SB8” and linking to the press release about its efforts to depose the funds’ leaders.
This makes it clear that the anti-abortion groups intend to bring lawsuits under the Texas abortion law, the new filings argue, and thus the groups can be sued proactively to stop them from doing so.
Neither the Thomas More Society or the America First Legal Foundation responded to requests for comment.
Rhodes has argued in several papers that this is a strong angle to challenge the law.
“This mechanism of ‘wait until you know someone is going to sue you, and then sue them in federal court first,’ is one of the best ways to get an offensive challenge teed up to [the law],” he said.
The filings argue that the abortion law violates advocates’ right to free speech by limiting how they talk to clients, advocate for abortion access and spend their donations, which could be considered political speech. In addition, they argue it is so vague that plaintiffs may not know what conduct is allowed or prohibited; it creates special rules that only apply to these lawsuits, which violates plaintiffs’ rights to equal protection under the law; and allows lawsuits to be brought by people who do not have standing because they have not been directly injured.
If a federal judge agrees with some aspects of these arguments, they could grant an injunction, stopping the Thomas More Society and the America First Legal Foundation from bringing lawsuits against the two abortion funds. The lawsuit also seeks a declaration that the law is “unconstitutional, void, of no effect and therefore not usable” — by anyone.
That wouldn’t stop anyone besides these two groups from bringing lawsuits, but it would create federal court precedent that could be cited in future litigation, Rhodes said.
[…]
Unlike previous legal challenges to the abortion law, these lawsuits deliberately sidestep the most highly politicized aspects of the law.
“This [case] is not really about abortion,” said Myers. “We’re not challenging the six-week ban.”
Myers said that’s not because they believe the six-week ban is constitutional, but rather because the courts may be more open to hearing arguments as to why other aspects of the law are also unconstitutional.
You gotta do what you gotta do, and if this can lead to taking the bounty hunting out of the picture, it will be a lot better. Indeed, that would allow abortions to continue in Texas, at least until SCOTUS can do more violence to Roe v Wade. But that day hasn’t happened yet, and with other states adopting similar bounty hunter laws, we have to deal with the immediate threat. Let’s hope for the best.
