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No Roe roundup

I don’t have a good title for this post, but I do have a collection of stories.

Planned Parenthood files restraining order against Texas Right to Life.

Right there with them

Planned Parenthood of Greater Texas and its affiliates filed a temporary restraining order with a Texas district court Thursday night against Texas Right to Life to stop the anti-abortion organization from suing abortion providers under a new law that all but bans abortions in the state.

[…]

Planned Parenthood, which has stopped providing abortion services in San Antonio but continues elsewhere in the state, refers to SB 8 as the “sue thy neighbor law.”

“Anti-abortion activists are already staking out our health centers, surveilling our providers, and threatening our patients,” said Helene Krasnoff, vice president for public policy litigation and law for Planned Parenthood Federation of America, in a news release. “The physicians, nurses, and clinic staff at Planned Parenthood health centers in Texas — and at abortion providers statewide — deserve to come to work without fear of harassment or frivolous lawsuits.”

This unprecedented enforcement framework essentially circumvents traditional judicial review. Typically, individuals or groups would legally challenge the state as the enforcer — but this law removes the state from the equation. In order for the Supreme Court to review the law, someone will have to sue someone who performed or assisted an illegal abortion; only then it can be challenged.

If the district court grants the restraining order, it would only apply to Planned Parenthood, its affiliates, and an individual Planned Parenthood Houston physician, Dr. Bhavik Kumar, who joined the order. This means other providers would likely still be subject to the law.

Texas Right to Life, which helped write the bill, set up a “whistleblower” tip line so people can report violations to the anti-abortion organization. An email seeking the organization’s comment on the restraining order was not returned Friday morning.

The Refugee and Immigrant Center for Education and Legal Services (RAICES) said on Twitter that it will defy the law.

“The ban on abortion in Texas is an abomination,” the nonprofit tweeted. “We want to send a very clear message: RAICES will not obey this archaic and sexist law. We’ve funded & supported access to abortions for immigrants in Texas for years and will continue to do so. Some laws are meant to be broken.”

You can see a copy of the lawsuit, which asks for a temporary restraining order as well as temporary and permanent injunctions against the defendants, “>here. The suit includes 100 “John Doe” defendants as “those individuals or entities who have expressed to other Defendants, whether by words or actions, their intention to enforce S.B. 8 against Plaintiffs”. I’m not exactly sure how that works, but I guess we’ll find out. It seems to me that in addition to the federal lawsuit, which is still ongoing despite the Supreme Court’s cowardly and corrupt ruling that allowed SB8 to take effect in the interim, every stakeholder who could reasonably foresee themselves as being on the wrong side of one of these nuisance vigilante actions should do the same thing and file their own pre-emptive lawsuit. We’ve already established that anyone can sue anyone over this, so who needs standing? KVUE has more.

On the subject of that federal litigation, it’s hard to say what comes next.

“This is all uncharted territory,” said Caroline Mala Corbin, a professor at the University of Miami School of Law. “So it’s really hard to say definitively what’s going to happen.”

What makes the law so unusual is its private enforcement, allowing nearly anyone to sue a doctor or other person who helps provide an abortion after six weeks, a point at which many women don’t yet realize they’re pregnant. Because the ban is not enforced by state officials, it’s difficult to know who abortion clinics can sue to challenge the law’s constitutionality.

The court’s conservative majority did not rule Wednesday on the law itself, and in fact acknowledged that abortion providers had raised “serious questions” about its constitutionality.

But the justices also expressed doubt about their ability to intervene in a privately enforced law such as the Texas law, Senate Bill 8, and experts said abortion proponents may have to think through other ways to get the issue before the court.

“The federal route is not dead, but the problem with it is it’s going to take some creativity on the part of federal courts to figure out why SB 8 and laws that may be like it are a real problem,” said Seth Chandler, a professor at the University of Houston School of Law.

“If SB 8 is OK, there’s nothing to stop Texas from passing a law that creates $10,000 private bounties for newspaper reporters who write things that are critical of the governor,” Chandler said. “Or for California to pass laws that may create a private bounty against people who own handguns in their home.”

Maya Manian, a visiting professor at the American University Washington College of Law, said the court could have at least temporarily intervened to allow for more time to review the claims.

“There is no question the Supreme Court could have found a way to overcome these procedural hurdles,” Manian said. “Yet they’re using this procedural cover to covertly overrule Roe v. Wade,” referring to the 1973 decision that established a constitutional right to abortion.

There’s no question that SCOTUS’ refusal to issue a stay against SB8 was an appalling and wholly political abandonment of their duty. Maybe the outcry that is now occurring will be enough to actually spur some federal action, both in terms of passing a law to enshrine Roe as the standard, and also to put some restraints on the increasingly overreaching Supreme Court. Just its abuse of the shadow docket is sufficient cause to reel them in. I’ll believe it when I see it happen, unfortunately. Beyond that, SB8 is so vague as well as unprecedented that no one really knows what its scope is. I suspect that was a feature of this abomination.

Back to the Chron story:

Several legal experts said the fastest way to challenge the law may be to openly defy it, a move Planned Parenthood and other providers have so far been reluctant to do.

“There will be someone mad enough to violate the law and happily serve as a test subject,” Mala Corbin said. “Because the women of Texas are not going to take this without a fight. This is their right to control their body at stake.”

Miriam Camero, vice president of social programs at RAICES, a group that gives legal aid to immigrants, said it was prepared to help women access abortion regardless of the law. Camero noted that the ban especially harms immigrants who already have a difficult time traveling to abortion clinics or out of state given their legal status.

“We will continue to assist clients, whether it be in Texas or Louisiana or Arkansas, Oklahoma, New Mexico,” Camero said.

It appears RAICES has already taken that step. We’ll see if they get hit with one of those lawsuits, in which case perhaps there will be a route to swifter action.

Doctors are also very unhappy with this new law.

The Texas Medical Association slammed the state Legislature on Friday, calling its passage of two anti-abortion bills “unconstitutional” and an interference with the fundamental patient-physician relationship.

“Enough,” the organization wrote in a statement. “The Texas Medical Association supports our physicians specializing in women’s health and opposes legislation in Senate Bill 8 of Texas’ 87th legislative session and Senate Bill 4 of this special session. SB 4 contains language that criminalizes the practice of medicine. Both bills interfere with the patient-physician relationship.”

[…]

On Wednesday, SB 8, which bans abortion after six weeks, including in instances of rape and incest, went into effect. The new law is a near-total ban on abortion and one of the strictest such measures in the country.

Hours before that, the Texas House passed Senate Bill 4, which would reduce access to abortion-inducing pills, the most common method for patients terminating a pregnancy. As sent to Gov. Greg Abbott’s desk, the bill would prevent physicians or providers from prescribing these medications to patients more than seven weeks pregnant.

Current Texas laws allow, and FDA guidelines suggest, practitioners to give these pills to patients who are up to 10 weeks pregnant.

“SB 8 and SB 4 go too far. Clearly these provisions are unconstitutional, in our opinion. TMA stands for the health care of all Texans and our profession. Enough is enough,” the statement continued.

[…]

“SB 8 allows for a bounty that encourages practically any citizen to file a cause of action against physicians, other health care professionals, and anyone who ‘aids or abets,’ based on a suspicion. If permitted to proceed, this law will be precedent-setting and could normalize vigilante interference in the patient-physician relationship in other complex, controversial medical or ethical situations.”

Meanwhile, the bill that was passed in the Texas House this week, SB 4, which limits access to abortion-inducing pills, would make it a criminal act for physicians to give these medications to patients more than seven weeks into a pregnancy.

“The physicians of Texas never thought the day would come when the performance of our oath would create a private cause of action for persons not connected to or harmed by the action. Yet, that day has sadly arrived in the state we love,” the TMA wrote.

Very heartfelt, and it’s easy to understand their outrage, but last I checked the TMA has been pretty supportive of Republican politicians, mostly because of tort “reform”. You want to convince me that you’re actually mad and not just having a minor snit, there’s an easy way to put your literal money where your figurative mouths are.

Finally, I mentioned the Texas Right to Life snitch site. As you may have heard, it has attracted some attention from folks who intend to disrupt it.

The Texas Right to Life organization created a website for those reports. But instead of citizens reporting on, say, the Uber driver who brought a woman to a clinic, critics of the law are spamming it with a barrage of fake information. Gov. Greg Abbott and Marvel’s Avengers are among those being reported receiving abortions, according to the New York Times.

Part of the flood of false info sent to the website appears to be aided by an activist and developer who posts under the social media alias Sean Black. In a viral TikTok first reported by Motherboard at Vice, Black explained that he wrote a script that anyone can access, which automates the process of letting them file fake reports. Each time they access Black’s script, new information is generated, theoretically making it harder for the Right to Life group to parse and ban people who are submitting fake reports.

As of September 2, not even 24 hours after the Supreme Court refused to halt the implementation of the law, Black told Vice the script had been clicked over 4,000 times.

Go get ’em, Sean Black.

UPDATE: One more story to add: Uber And Lyft Have Pledged To Cover Their Drivers’ Legal Fees If They Get Sued Under The Texas Abortion Law. Kudos to them for that.

UPDATE: TRO granted to Planned Parenthood. A hearing for an injunction will be September 13. No word yet about an appeal of the TRO.

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4 Comments

  1. Ross says:

    I wish I had the wherewithal to get about 25 of these SB8 suits filed against Steven Hotze. There’s not a lot of details in the law regarding standard of proof, and even if the plaintiffs lose, it’s going to cost the bad doctor a ton to defend. I would also file suits against Abbott, Patrick, etc, and make them pay to defend themselves. Turn this into a scorched earth campaign against the idiots who created SB8 and put it into law.

  2. Kibitzer Curiae says:

    TEMPORARY RESTRAINING ORDER (TRO) VS. TEMPORARY INJUNCTION (TI) IN TEXAS STATE COURTS

    Re: “No word yet about an appeal of the TRO.”

    Comment: It probably won’t take long, but it won’t be an appeal.

    Once again, folks, by way of general information about the Texas legal system:

    A TRO is a temporary (interlocutory) order and cannot be appealed. It would have to be challenged through a petition for a writ of mandamus filed in the court of appeals having jurisdiction (here the Third COA in Austin), or in the SCOTX with an explanation why mandamus relief wasn’t first sought in the intermediate appellate court. See the Supremes’ recent denial of mandamus relief in the challenge to the three TROs signed by Judge Soifer in the mask-mandate litigation (Tex. 21-0701). Temporary injunctions were subsequently granted in favor of Harris County and a number of school districts in two of those cases, and those orders can be appealed and have already been so appealed, to the Third COA. I will post the roster of pending mask-mandate cases later this weekend for the benefit of readers who want to track what’s happening on that front.

    Also, as a litigant you don’t get a TRO in your favor by just *filing* one. Nor can you *join* a TRO. A judge has to grant this form of immediate relief based on a proper written request and an oral hearing (sometimes ex parte, as happened in Tex 21-0667) and the judge has some discretion also. If a mandamus is sought against a TRO by the restrained party (here, Texas Right to Life), the propriety of the trial judge’s order will be reviewed for an abuse of that discretion by the higher court. And as for “joining” you have to either come into the case as an additional plaintiff on the original petition (multiple parties are often represented by the same lawyer) or later file a petition or plea in intervention (to which the existing parties may object if they so wish).

    And the motion to request a TRO is technically called an application, though that’s a minor semantic detail. The distinction between a TRO and Temporary Injunction, however, is no minor matter. Only the latter can be appealed immediately, the former requires a different procedure: a petition for writ of mandamus against the judge that signed the order. If successful, the judge will be directed to vacate the challenged order, rather than the court of appeals reversing it and rendering a different judgment. And a TRO is always time-limited. A temporary injunction, by contrast, can remain in force for months until either dissolved or modified (or reversed on interlocutory appeal), or terminated through a final judgment. In the mask-mandate litigation, however, the Governor is a party, and the AG asserts that any temporary injunction entered against him as Governor is automatically suspended (“superseded”) by the mere filing of a notice of interlocutory appeal on his behalf. Which is why the local entities suing the Governor sought reinstatement of the trial court injunction by the appellate court under rule 29.3 of the appellate rules, though that bid ultimately proved unsuccessful.

    In order to have proper predicate for the grant of a TRO, the party seeking relief has to file an original petition (the equivalent to an original complaint in federal court) and an application for a temporary restraining order, which must be verified (sworn to) and must meet certain other requirements. It can be combined into a single document, but need not be. You can’t get a TRO independently without a lawsuit alleging a cause of action (legal basis for a claim for relief), which is commenced by e-filing an original petition.

    As for the actual substance of the TRO, the plaintiff/applicant can submit a proposed TRO that his or her attorney drafted, or the judge may request that a proposed order be submitted that memorializes the ruling at the TRO hearing with the proper legal verbiage. But the judge can always modify/mark up such a proposed TRO or draft one sua sponte (or use a previous one as a template).

    In the Fort Bend County v. Greg Abbott mask-mandate litigation, for example, the trial judge added a geographic restriction of the order in hand-writing, presumably in light of what happened in the Dallas case, in which the AG complained in the mandamus proceeding that the TRO in favor of County Judge Clay Jenkins was *statewide* in scope, thus making Supreme Court intervention paramount. Remember that in that case, the Supreme Court issued a stay order. That could happen here, too, if Right to Life decides to seek mandamus relief, rather than waiting for a full-fledged evidentiary temporary injunction hearing on Sep. 17, 2021 (or whenever).

    For the actual rules governing trial court procedure, including injunctive relief, here are the 339 pages worth of them for your enjoyment:
    https://www.txcourts.gov/media/1445439/trcp-all-updated-with-amendments-effective-may-1-2020.pdf

  3. Kibitzer Curiae says:

    Hoisting the Supremes with their Own Petard: A somewhat contrarian view to enrich the debate, not mention the litigation entrepreurship on all sides.

    Senate Bill 8 has been called clever and devious, and the same might be said about the temporary restraining orders granted in favor of abortion providers and funders by Travis County district judges to blunt its immediate impact.

    THE STATUS QUO REDUX: IF GOOD FOR THEE, WHY NOT FOR ME?

    These trial judges’ rationale: SB 8 changes the status quo, and the Supreme Court recently said we can’t have that. See In re Greg Abbott (Tex. 2021).

    When the Supremes issued instanter relief in 21-0720, of course, they did it in order to protect the Honorable Greg Abbott from the indignity of having his anti-mask order restrained by irreverent trial court judges. The Supremes did their former colleague a favor.

    Now trial judges of the Democratic persuasion in the People’s Republic of Austin are turning the tables on the Supremes, happily restraining SB 8 lawsuits that would upset the status quo under Roe, come September 1, 2021, and are thereby doing their constituents a favor in return.

    And the Roe v. Wade situation has been in effect quite a bit longer than Governor Abbott’s rule by decree under the Texas Disaster Act. So there. The pro-choice crowd has an even better argument about the need for conserving things as they stand, sit, and lie, and to do so promptly with a judicial emergency order, lest social conditions change too fast in unprecedented ways.

    Hurry, hurry, county clerk. Gimmie that writ!

    And since the status-quo criterion for the grant of temporary relief is merely a procedural matter, the abortion docs and their litigation machine don’t have to bewail the people’s settled expectations (about the availability of legal abortion), though that arguably helps too. At least with trial court judges in liberal strongholds who share the values of the community in which they are embedded.

    SPECIAL SESSIONS TO SECOND-GUESS THE LEGE ?

    But think about it for a moment: Each and any new laws enacted by the Lege changes the legal status quo on the day it goes into effect. So, if that alteration of the legal environment were sufficient to justify a TRO until the legal merits of the new law can be sorted out in court, wouldn’t that open the floodgates for a routine Encore of quasi-legislative action in the judicial forum? As long as there are at least some folks out there unhappy with recent doings of the Lege?

    So how about all the hundreds of other news laws that came into legal being on Sep 1, 2021 along with SB 8? Pick one you don’t like and file an injunction suit.

    Bring it on. Law suit galore!

    For starters, why not file an injunction suit if you don’t like open carry? If your neighbor starts strolling around with a gun, for example? After all, now you have reason to feel threatened; the status quo has been disturbed, and the proximate cause is an act by the Texas Legislature that authorized a private actor – your neighbor – to openly pose a threat to your hitherto un-perforated and bulletfree bodily integrity.

    A QUICK LOOK AT THE GIST OF THE ARGUMENT

    As to the merits, the suit by Planned Parenthood against Texas Right to Life is quite a piece of work too.

    Their implicit theory of liability is that Right to Life helped get SB 8 passed and that they are now fixing to act under it consistent with it. As an initial matter, pushing for legislation constitutes core First Amendment activity and is not actionable as a civil wrong; second, whether proposed legislation gets passed – and in what from — is up to the Legislature, or two majorities in House and Senate, to be more particular. So, the proximate cause for the fact that SB 8 now constitutes positive law in Texas is the fact that the Lege enacted it and the Governor didn’t veto it. To drill deeper, going beyond the institutional analysis, the responsible human actors are those members that supplied the requisite minimum number of votes. From that perspective, the lawsuit by Michelle Tuegel against state legislators makes more intuitive sense as far as the choice of defendants is concerned. Texas Right to Life, by contrast, does not enact legislation, and at best ranks farther back in the causal chain of events that culminated in SB 8 engrossment and ceremonial gubernatorial signoff.

    SUBSTANCE OF LAW (PROSCRIPTION OF MOST ABORTIONS) VS. ENFORCEMENT

    To allocate responsibility for a bad law to the legislature, of course, is one thing; enforcement another.

    As for the former, a court of law is not a proper forum to rehash policy debates that took place in the Lege and were resolved there in one way rather than some other; you have to show that the Lege-made law is actually invalid under higher law – constitutional law, either state or federal (or both).

    As for the latter, the legislature does not enforce the laws it passes and while it is true that the Lege can repeal a previously-engacted law, a court cannot tell a co-equal branch what to do or not do. That would violate the separation of powers. So that then leaves for the third branch solely the issue of whether the act(s) of the Lege are constitutional, and whether the issue is properly before them for a decision on that question. Short of a determination of invalidity or voidness, however, trial-court-level judges have to apply and enforce the applicable law as written to disputes that land before them (typically by random assignment in multi-district counties).

    As for the question of constitutionality, the predicate for all of Planned Parenthood’s legal arguments is the federal constitutional right to an abortion. To begin with, this asserted right doesn’t amount to a positive legal entitlement to be provided an abortion for anyone who demands one. Second, while the Planned Parenthood plaintiffs complain of the denial or infringement of constitutional rights, they filed in state court relying on the state constitution, and don’t make out a Section 1983 claim under federal law.

    So, where is the state constitutional equivalent of Roe v. Wade? If there is one, it would have to be “found” by the Texas Supreme Court, the state court of last resort which has the last word on the meaning of state law. Good luck with that.

    Even more fundamentally, both the federal bill of rights and the Texas bill of rights limit and constrain the powers of government, so how are alleged denials of specific rights enforceable or actionable against private parties? Can private parties even commit a constitutional violation short of enslaving folks in contravention of the Thirteenth Amendment when they are not acting under “color of law”?

    Planned Parenthoods’ theory seems to be that Texas Right to Life has been “deputized” to act as enforcers in lieu of government actors doing so themselves. Again, they would have to convince the Texas Supreme Court that private parties suing under SB 8 under a private cause of action created by the Legislature are to be deemed state actors, or that they stand in the shoes of state actors. Again, good luck with that. Such a holding with would be directly opposite to articulated legislative intent.

    PRIVATE CIVIL ENFORCEMENT

    Additionally, there are many existing laws that allow private individuals to sue bad actors and thereby perform a function that could otherwise be performed by a regulatory agency, a state attorney general, or a public prosecutor. DTPA suits, for example, or claims under the Fair Debt Collection Act. And there is legislative authorization of “bounties”. The FDCPA is a strict liability statute that authorizes a statutory penalty of $1,000 for a private plaintiff. As for a state law example that allows ordinary Texans to sue, the civil barratry/anti-solicitation statute provides for a $10,000 “bounty” for a proven violation. The point being: There is nothing new about private enforcement in other areas of regulatory policy.  

    WHO REALLY DOES THE ENFORCEMENT ?

    The notion that these private plaintiffs are authorized to act as “vigilantes” is mere hyperbolic rhetoric. Private plaintiffs suing under SB 8 cannot accomplish anything without favorable rulings of the court in which the SB 8 action is filed.

    The harm of which Planned Parenthood complains (and sought to stave off by moving for a TRO)  is being sued in the first instance, and being (potentially) held liable on the merits of claims as a result of that litigation.

    Only the suit-filing part, however, is under the unilateral control by the private plaintiff, and that alone doesn’t impose any harm on the named defendant, at least not until they are served with citation, and have to respond with — at the minimum — a general denial to prevent a default judgment.

    The imposition of liability depends on the actions of a judge, who – unlike the private plaintiff – is an agent of the state and a state actor. So, the proper party to focus on would be the judge that gets to enforce SB 8 by entering judgment for the plaintiff (if — and only if —  a valid claim is proven on the merits of cause of action created by statute). The Whole Woman’s Health et al plaintiffs in federal court understand this. That’s why they sued a state judge (Austin Reeve Jackson) as a representative of all other Texas state judges (though not with much success so far).

    SNUFFING OUT ALL LAWSUITS

    It is a plausible proposition that an undesirable lawsuit – not to mention a bevy of them –could be prevented by prohibiting plaintiffs (or would-be plaintiffs, much rather) from filing them. But nothing has prevented private parties from suing Planned Parenthood before SB 8 went into effect, and health care providers are always at risk of being sued even after tort reform. That’s because there is virtually no gate-keeping by the court clerks as to the merits of any original petittion that comes over the counter, into the after-hourse drop box, or through the Texas eFile system or snail. That’s true even if defendants are immune under the sovereign immunity doctrine. At the minimum, immune defendants have to get an attorney to answer and file a plea to the jurisdiction. That is very much part of the status quo.

    A lawsuit under SB 8 may be a crackpot lawsuit, as are some lawsuits now (especially by pro se litigants though not exclusively), but a court clerk would have no basis to reject it. And judges are perfectly able to handle them. There is no need to protect judges and their staff from having to exercise quality-control over what floats onto their docket. Nor do frivolous lawsuits pose a threat to corporate defendants who already have an established relationship with a law firm. A dismissal can be procured easily with available tools, such as Rule 91a or a motion for no-evidence summary judgment. There is no credible harm here, not to mention a harm that requires intervention through a TRO to prevent it from occurring. Indeed, if Planned Parenthood were to be sued today under SB 8, it would be several weeks before they even have to file an answer. A TRO lasts for 14 days at the most. So what’s the urgency here?

    What Planned Parenthood is really after here is to prevent SB 8  lawsuits that would be *meritorious* under the statute as written. That’s the crux of the matter, and that goes to the validity of the proscription part of SB 8 (defining what type of abortion is unlawful and what constitutes a violation), not the standing to bring suit that it provides to any member or the public at large. And if they could, they would of course like to get the proscription component of SB 8 declared invalid, even if they don’t have a proper defendant, and even if the prospect of having a to pay a $10,000 statutory penality in successful SB 8 suit lies far in the future.

    RIGHT TO ACCESS THE CIVIL COURT SYSTEM AND PRESUMPTION OF CONSTITUTIONALITY

    The more serious issue here is the right to access the courts, which is constitutionally protected. It is indeed ironicv — if not the height of hypocrisy — for the Planned Parenthood Plaintiffs to invoke the open courts provision of the Texas Constitution for their own benefit in a bid to shut down lawsuits by their political opponents through an anti-suit injunction, thereby denying their adversaries access to the courts in a categorical fashion, and deny them entry into the forum that will decide upon constitutionality (or otherwise) at the threshold.  

    Their contention, of course, is that SB 8 is unconstitutional and therefore an evil to be extirpated. But no court has so ruled (yet) — not to mention as to entirety of SB 8 as distinguished from particular provisions — and in the meantime a duly enacted statute is presumed to be constitutional. At least that’s what Texas appellate courts say when evaluating constitutional challenges. And that is consistent with the Code Construction Act.  

    Since Right to Life hasn’t done anything unlawful even it it “threatened” to sue under SB 8, or helped others get ready to do so, there is no legitimate basis for a blanket anti-suit injunction against them. Not even vexatious litigants are treated as shabbily as pro-lifers are being treated here. Vexatious litigants still have the right to seek pre-suit permission to bring a lawsuit from the local administrative judge because the right to access the courts is —  well — guaranteed by the Texas constitution. And they become declared vexatious litigants only based on prior bad acts in the form of consecutice frivolous lawsuits. 

    AN INTERIM ASSESS – BROUGHT TO YOU GRATUITOUSLY BY THIS KIBITZER

    The judges in Travis County issued courtesy rulings that parrot the Texas Supreme Court’s vacuous status-quo preservation rationale for backing Greg Abbott and his abuse of emergency powers in the mask-mandate mandamus cases No. 21-0720, 21-0686, and 21-0687.

    It might give Abbott and SCOTX detractors a good case of Schadenfreude that this gambit proved successful in Round 1 of the legal war over abortion that has just re-commenced and is now heating up tempers.  

    But these temporary legal victories against Right to Life and others cannot be justified on the merits.

    PRIOR RESTRAINT BY THE DOZENS AND THEN SOME

    One of the orders purports to put a straight-jacket on 100 unknown Jane/John Doe Defendants and endeavors to pull others within its ambit for exercising their right of association with an organization that shares their values and political objectives.

    Since the identity of these 100 Does is not known, they obviously were not given individual notice of Planned Parenthood’s present action and its bid to limit their constitutional rights, a very basic requirement of due process.

    Instead, Planned Parenthood reserves the right to designate up to 100 human targets as they emerge later on the litigation horizon, the implication being that each and every one of them can be charged with contempt of court for violating the TRO (and later a TI, if granted) and sent to jail should they dare to sue under a law that was duly enacted and has yet to be ruled unconstitutional.

    Notably, the SCOTUS has already passed up an opportunity to weigh in on that matter. See here: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21a24.html

    The ultimate irony here is this: The abortion providers are complaining about the prospect of being sued (and being saddled with the cost of litigation) while they themselves are simultaneously inflicting that very indignity and  burdens upon 100 unnamed Texans preemptively.

    MAKING THEM PAY FOR WHAT THEY WERE GOING TO DO, OR MIGHT HAVE DONE IF NOT RESTRAINED

    Worse, they are seeking to stick their ideological adversaries with attorneys’ fees under the Uniform Declaratory Judgments Act (CPRC Chapter 37), which could surge into the six-figure range or higher, given the complexity of the multitudinous legal and constitutional issues, their designation of the case for a Level 3 discovery plan, and the large number of defendants (TRTL + John Seago + Jane/John Does 1 to 100 = 102).  

    COOKIE-CUTTER PRO-FILE VIEWPOINT SUPPRESSION LITIGATION

    And that’s not all. They could sue anyone else by name in a separate suit modeled on the current one as soon as a person has expressed pro-life sentiments or sympathies for TRTL in the current skirmish, and milk these pro-life wretches for attorneys’ fees too, or force them at the mimum to incur attorneys fees in defense of their constitutional rights. Once they have been selected as target by pro-choice litigation machine based on their unpopular views on a political and moral issue.

  4. policywonqueria says:

    ALL REVVED UP TO CRUSH THE PRO-LIFERS, THE ABORTION LITIGATION MACHINE NOW IN MOTION

    Invoking the specter of a volley of lawsuits by abortion opponents under Senate Bill 8, abortion providers have launched a volley of lawsuits against pro-life politicians and advocates. Here is the tally as of this weekend:

    WRITS ISSUANCE REQUESTED IN THE FOLLING CASES [implying that TRO was granted]

    Michelle Tuegel v. State of Texas, et al – D-1-GN-21-004316 – by Atty Jennifer Ecklund – TRO writ issuance requested

    The Bridge Collective v. State of Texas, et al – D-1-GN-21-004303 – by Atty Jennifer Ecklund – TRO writ issuance requested

    The North Texas Equal Access Fund v. State of Texas, Gregory Abbott, Ken Paxton, et al. – D-1-GN-21-004503 – by Atty Jennifer Ecklund – TRO writ issuance requested

    Clinic Access Support Network v. State of Texas, Gregory Abbott, Ken Paxton, et al. – D-1-GN-21-004544 – by Atty Jennifer Ecklund – TRO writ issuance requested

    Fund Texas Choice v. State of Texas, et al. – D-1-GN-21-004606 – by Atty Jennifer Ecklund

    The Lilith Fund v. State of Texas, Gregory Abbott, Ken Paxton, et al. – D-1-GN-21-004504 – by Atty Jennifer Ecklund – TRO writ issuance requested

    Allison Van Stean v. State of Texas, Gregory Abbott, Ken Paxton, et al.- D-1-GN-21-004179 – by Atty Jennifer Ecklund – TRO writ issuance requested

    Faulkner v. State of Texas, et al – D-1-GN-21-004189 – by Atty Jennifer Ecklund – TRO writ issuance requested

    OTHER ANTI – SB 8 INJUNCTION SUITS IN THE PIPELINE

    Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, Planned Parenthood Center for Choice, et al. vs. Jane/John Doe 1-100, Texas Right to Life, John Seago – D-1-GN-21-004632 – by Atty Austin Kaplan

    Jane Doe v. State of Texas, Gregory Abbott, Ken Paxton, et al. – D-1-GN-21-004193, by Atty Jennifer Ecklund

    The West Fund v. State of Texas, Gregory Abbott, Ken Paxton, et al. – D-1-GN-21-004648 by Atty Jennifer Ecklund

    The Afiya Center v. State of Texas, Gregory Abbott, Ken Paxton, et al. – D-1-GN-21-004605 – by Atty Jennifer Ecklund

    Ghazaleh Moayedi v. State of Texas, Gregory Abbott, Ken Paxton, et al. – D-1-GN-21-004489 by Atty Jennifer Ecklund

    NONSUITED

    Michelle Tuegel v. State of Texas, et al – DC-21-11237 – by Atty Jennifer Ecklund – nonsuited 8/27/2021 and re-filed in Travis County (see above).

    POLICYWONQERIA FAVORS PREGNANCY-PREVENTION
    OVER DOCTOR-ASSISTED FETAL DEMISE

    Alas, the pro-abortion interests — now in aggressive litigation mode on the plaintiffs’ side of the docket — are more interested in the prophylaxis of SB 8 private enforcement lawsuits than in the prevention of unwanted pregnancy to reduce the need for abortions.

    Perhaps not surprising, since fetus extraction services generate revenue for the abortion industry while pro-lifers are into saving unborn babies for no obvious monetary payoff, motivated by religious or other value commitments.

    It’s not just a left-right donkeys vs. elephants issue, and conflicting concepts of right, it’s also a battle of money vs. values.