Off the Kuff Rotating Header Image

The federal response to the “heartbeat” bill

I hope it amounts to something, and I hope they’re quick about it.

U.S. Attorney General Merrick Garland said Monday the Department of Justice is “urgently” exploring ways to challenge Texas’ strict new abortion law, but did not specify what options were being considered.

Garland’s statement in a press release comes days after the U.S. Supreme Court denied Texas abortion providers an emergency injunction against the new law banning abortions after fetal cardiac activity can be detected, which can occur as early as six weeks into pregnancy, when many don’t know they are pregnant.

The Supreme Court stated it was not ruling on the constitutionality of the law but was refusing to block it at this point.

Twenty abortion providers originally filed the lawsuit against the state in July to try and shield themselves from the law, which allows private citizens to sue providers and others suspected of helping women get what are now illegal abortions. Gov. Greg Abbott signed Senate Bill 8 into law in May, after abortion providers already began sounding alarms about its potential impacts.

In his statement Monday, Garland also said that federal officials will rely on the decades-old Freedom of Access to Clinic Entrances Act to “protect those seeking to obtain or provide reproductive health services.” That federal law bans threats of force or physical obstruction against those seeking such health services.

“The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack,” the statement said.

Garland said DOJ officials have contacted U.S. attorneys’ offices and FBI field offices to “discuss our enforcement authorities.”


President Joe Biden denounced the Texas law in a statement released on Wednesday, also without specifying a course of action.

“My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right,” Biden said.

We don’t know what the specifics of this will be, so let me state a general principle that I hope they follow: Roe v Wade remains the law of the land, abortion remains a constitutionally protected right, and any interference in the expression of that right will be met with the full force of the federal government. Bring the pain, scorch the earth, and don’t back down. Talking tough is easy, we need to see action. Slate and Daily Kos have more.

Related Posts:


  1. David Fagan says:

    I can see how people are concerned about Roe v. Wade, but what about HIPPA? Inviting a third party into someone else’s medical privacy looks like a glaring problem in this whole issue.

  2. Ross says:

    HIPAA doesn’t apply here, unless the clinics are exposing patient data. Following someone to a clinic, or suing the clinic, or suing someone who provided transportation doesn’t violate HIPAA in any way.

    The law is intended to eliminate abortion by allowing intimidation and the threat of ruinous legal bills to force clinics to shut down.

  3. Jason Hochman says:

    I am pro life. Doctors shouldn’t perform abortions as unwanted pregnancy is a preventable condition. Just like not treating Covid in the not vaccinated is a doctor’s right, so is not treating the preventable condition of pregnancy.

    It is no longer your body, your choice. They can tell you to get vaccinated. Screw your freedom, they said.

    Of course abortion is killing another person, not a procedure to treat your own body.

    Even though I am just a novice student of law, assigned to complete a very simple analysis, I would say that abortion violates the equal protection because it discriminates against men in their role as fathers and husbands.

  4. Ross says:

    Jason, first off abortion and Covid are 2 completely separate issues, and they shouldn’t be conflated.

    Second, you state you are pro-life. Everyone is pro-life. You are pro-forced birth, removing a woman’s right to determine what medical care is appropriate for her situation. It’s really none of your business whatsoever what that decision is. You don’t know her health situation, her financial situation, whether she was raped, or anything else.

    And, before you go crazy shouting that those should apply to Covid choice as well, keep in mind that a woman choosing to have an abortion has no effect outside her body. Failing to vaccinate against Covid makes you a potential killer. Don’t want to be vaccinated, fine, but don’t complain when you are required to wear a mask in public or quarantine yourself.

  5. Kibitzer Curiae says:


    Re: “Following someone to a clinic, or suing the clinic, or suing someone who provided transportation doesn’t violate HIPAA in any way.”

    True, drivers are not medical providers and ridership data isn’t medical data. Nor does the fact of a trip terminating at the address of a known abortion facility necessarily give rise to an inference that the rider is about to violate SB 8, or a good-faith factual basis for an SB8 lawsuit (though what constitutes the civil equivalent for “probable cause” in this context is somewhat unclear and therefore debatable).

    First, the rider could be an employee of the clinic (and could be involved in performing still-legal “small shrimp” evacuation few as they may be, or could be doing other things while the federal case (Whole Woman’s Health v. Jackson, Texas Judge) is pending, such as receiving compliance education, self-defense training, paper-shredding or other mechanical office tasks, preparing for deposition or for interviews by quality journalist, fine-tuning narrative for press releases and whatnot). Speaking of narratives, the Uber rider could also be a journalist, or a fact-gatherer/reasearcher who doesn’t regularly pump them out over twitter or a website; or an abortion opponent/protester, all of whom would have a reason to go there other than participating in an unlawful abortion, or even a permissible one.

    Second, a rider might designate the address of the known abortion facility as the destination for the booked trip, but may be heading to another address in the neighborhood that they don’t want to create an electronic record for, say an SOB, a speakeasy or an underground gambling hall, or a paramour’s apartment.


    Third, a ride could even be orchestrated for the purpose of establishing facts to bring a case in which a challenge to the “aid and abet” portion of SB 8 could be made, which might be particularly tempting in a situation where a ride-hailing company with deep pockets has agreed to assume any legal defense costs for SB8 lawsuits.

    Think of the would-be litigants in the Uber or Lyft car or taxi as “testers”. One of them sues, the other allows himself or herself to be sued, and the ride company pays the lawyer on the defense side of the litigation. It may be collusive, but that wouldn’t be obvious when the lawsuit is filed, and may never be found out if there is no truly adversarial discovery (including deposition of parties and collaborators or persons otherwise in the know), nor would there necessarily be a need for discovery. And if push comes to shove — or the parties don’t like the judge they are drawing — the charging party in the court jousting could call it quits with a unilateral notice of nonsuit. And a money judgment for attorney’s fees wouldn’t matter if the collusive beneficiary of such judgment is willing to “forgive” it or the parties agree for it to be satsified in consideration of say $1.00 dollars (and perhaps “other consideration” such as a couple of to-go cappuccinos or soy lattes from Starbugs) by way of amicable Rule 11 agreement (or a confidential settlement in any mutually-agreed amount, or none).

    Given the genre of maccinations we are already witnessing, including the forum-shopping and crafty tactical timing of requests for emergency relief, the prospect of amicable lawsuits is hardly off the wall. And don’t forget that it is the public policy of the State of Texas to favor the amicable resolution of disputes. That’s why we have ADR, after all. Why should gentlewo/mens’ agreements not falll within the ambit of that policy declaration? Let Lady Justice hood and wink, not blink. Not to mention raise brows, when all eyes are on judges to stand up against State Senate and House.


    One could also envision a litigation scenario where both sides’ attorneys *stipulate* to the relevant facts (depending on which component of SB 8 is to be challenged as part and parcel of piecemeal strategy), and take it up on permissive interlocutory appeal to decide the constitutionality of the relevant provisions of SB 8 as a pure matter of law (with no factual disputes that would necessitate factfinding by judge or jury). Facts agreed to for purposes of testing legal propositions that govern them don’t even have to comport with reality. So the defending side doesn’t even have to have done the predicate deed alleged in the petition, which brings us to the next litigation scenario.

    One could alternatively envision an SB8 lawsuit and subsequent appeal solely based on the pleadings, i.e. the facts as alleged before any discovery or further litigation gets under way. This could easily happen if the defense responds to the lawsuit with a plea to the jurisdiction (arguing that statutory standing created by S.B.8 is not enough in the absence of other actual harm to the plaintiff) AND the trial court grants the jurisdictional plea, and thereby disposes of the case with a final judgment of dismissal. In that scenario, there wouldn’t even be a need to request permission for a discretionary interlocutory appeal on a question important to the jurisprudence of the state (and affecting many Texans) because there would already be a final judgment to appeal in the regular manner. And it could be appealed immediately.

    Whether the trial court is right or wrong (i.e., legally “correct” when ruling on the jurisdictional plea) wouldn’t matter if the primary purpose of the lawsuit is to get the relevant legal issues into the court of appeals (and then into the supreme court), to be decided by the relevant policymaking court a matter of law (as distinguished from having to have a trial on messy facts and much discovery that could draw on for months).

    And it’s highly likely that the locally elected trial judges in large metropolitan counties (such as Travis, Dallas, or Harris) would grant such a plea because it would be a popular thing to do, and would involve a jurisprudential principle that could kill off the private enforcement mechanism categorically, at least in cases in which the plainitff relies *solely* on the statutory standing created by SB8, and alleges no other injury or harm as a basis for standing. In other words, such a ruling would be jurisprudentially sound regardless of the viability or otherwise of the expansive abortion proscription in SB 8. And Democratic trial judges could avoid looking overly political or partision.


    The Texas Supreme Court has previously followed the standing principles articulated by the US Supreme Court even though the jurisdiction of state courts is not based on Article III of the federal constitution. So, you would have to show personal harm to proceed with a lawsuit based on a wrongful abortion, you couldn’t just rely on statutory standing created by the Texas Legislature. At the minimum, you would have to show some stake in the matter of the homunculus-in-progress and its MD-facilated demise.

    … that you already bought a baby crib and a truckload of diapers, for example, or booked the Hilton Americas for a big baby shower and can’t get a refund, or that you pre-enrolled your as-yet not fully-formed sprout in a top-notch neonatal-toddler care facility or even kinder garden or nursery.

    What if you already paid an immigration-lawyer retainer and contracted for an au-pair to by flown in from Paris, not Texas, to give your kid a headstart in the realm of all haute couture and contours. Or from Athens, so democracy, agape, and Socratic discourse in the agora won’t be all Greek to your already well-begotten future extention to the family tree of a long and distinguished line of Democrats.

    Perhaps you are musically inclined and invested in a strap-on belly-sound system to expose your evolving legacy to posterity to Mozart’s Eine Kleine Nachtmusik or Beethoven’s Ninth. Or to Willie Nelson, to breed and raise a real Texan. Get Junior on the road not again, but for the very first time as soon and there is what sould like a heartbeat.

    And even it it’s just a wearable tape recorder loaded with a vintage Esperanto 101 instructional tape, should you see yourself as an idea-driven globalist; it should still satisfy conventional criteria for standing if you forked over a $10 bill for the retro soundmaking machine at a flea market. After all ten bucks has long been the going face value of “consideration” in real estate deeds. So why not for actual damages purposes in a civil lawsuit when real houses to live in — not just pre-used baby-doll play-sets — get transferred for that amount?

    Or perhaps you bought life insurance for your happy new little family of three-to-be, so your soon-to-be-delivered bundle of joy will be financially taken care of until age 18 should a tree limb happen to befall you while out making rounds on the Lieberman trail.

    After all, the taxpayer-funded attorney for Lieberman and his Memorial Park Parent would claim derivative sovereign immunity, leaving your own forthcoming offspring without a viable survivor’s claim in the unfortunate event of your premature demise without your prior consent.

    In that fact scenario, there would arguably be a *reaonable and material reliance interest* of even greater gravitas: You would not have bought the life insurance (on your own life) otherwise because (a) you wouldn’t have gotten the payout, and (b) there would be no need for you to insure your own life in the absence of the intended beneficiary. You didn’t get it for yourself because you can’t take it with you when you die to bribe Saint Peter at the gates of heaven. And you don’t have to be biblical to agree with that proposition. You did it for a noble purpose – taking care of your lovingly and fully consensually conceived not-yet-born child and its other parent – but you paid the premium. So, if everything had to be reduced to money and thus concretized to count and be valued in a court of law, you would here also be out of money that you could have spend on cases of beer or a cottage home brewery in the toolshed out in the back yard. And that should be enough to satisfy courts for standing purposes even if they are not pro-life, and even if they somehow don’t understand that having a son or daughter may mean more to you brute caveman than a barrel of beer or a hot rod.

    Or a dog, for that matter.


    The problems with the current litigation is that the abortion providers want Senate Bill 8 struck down in its entirety. Leaving aside the problems of finding/suing proper defendants (enforcers to be judicially restrained and enjoined on pain of being taken to jail on contempt), this is a facial challenge to the law as passed, i.e. an argument that S.B. 8 is unconstitutional always, in all its applications.

    As a general proposition in constitutional litigation, that’s much harder to do. Additionally S.B. 8 doesn’t just say all abortions are illegal, and it doesn’t create a cause of action against a woman having an abortion, or a man with uterus, for that matter (see related footnote in the district court’s Whole Woman [sic] opinion).

    SB 8 has many provisions and covers many factual scenarios relating to abortion, and not all are necessarily unconstitutional. An example would be a type of abortion that was unlawful even before S.B. 8 for which Roe v. Wade etc would not have precluded prosecution. In that scenario it might just be a question of whether the private enforcement authorization by the Texas Legislature would pass constitutional muster. That’s a different legal issue from what was involved in Roe v. Wade. Legislative creation of causes of action and consonant means of enforcement and remedies is nothing new, but in this context it is.


    The other problem (in federal courts) was to obtain a ruling before the effectiveness date, i.e. enjoin the law from going into effect in the first instance. September 1, 2021 has come and gone, so now S.B.8 is the law, whether it is ultimately found constitutional or not. But no one has yet been sued for violating it. (At least it hasn’t been widely reported).

    So now, abortion providers can no longer seek immediate injunctive or declaratory relief to stop S.B. 8 from coming into effect. It is already in effect, and has changed the legal environment accordingly. Challengers will now have to overcome the presumption of constitutionality. SB 8 was, after all, duly enacted and signed by the Governor. Your outrage over it doesn’t alter that fact. Nor does it alter the habit of the courts of appeals to place the burden to overcome the presumption of constitutionality on the party challenging the law. That’s because that’s the way has to be done, based on binding judicial precedents.

    The eager beavers on the pro-abortion side of the docket are acknowledging as much by filling out the form required to give AG Paxton notice that the constitutionality of a statute is at issue, thus providing him an opportunity to defend the new law on behalf of the State of Texas, as is his duty; — the GOP-controlled State of Texas, as we all know. But formally speaking, that doesn’t matter.

    Even if Roe gets killed off at the tender age of 48 (along with its nonaborted progeny) by the U.S. Supreme Court as currently composed – which is unlikely since only 3 members interjected that they thought SB8 was patently unconstitutional – it would seem that the “aid & abet” provision and the “intending to” short of actually doing/having done anything provision of SB8 are constitutionally unsound for reasons unrelated to whether or not the federal bill of rights is properly construed as providing a right for an abortion enforceable against a statutory proscription imposed by the requisite majorities of a state legislature with the tacit or overt assent of the veto-armed Texas Governor. — On void-for-vagueness grounds, for example.


    If the preceding paragraph leaves you scratching your hat and mumbling what-the-hump, just wait for the actual briefing and opinion production, which will surely feature jurisprudential effusions that evince far superior legal intellect, compared to the typo-riddled kibitzer fare offered as chow to chew on in the interim.

    Not to mention the antediluvian idea that men — the male of the species — might actually have somenting to do with human procreation, and consequently have a stake here.

    Ban the thought!

  6. policywonqueria says:


    Re: “I would say that abortion violates the equal protection because it discriminates against men in their role as fathers and husbands.”

    Regardless of what you think of Hochman’s rants on masks and otherwise, this is a valid argument, at least for the intellectually honest segment of the intelligentsia.

    Alas, this is a “forbidden idea” that could get you sanctioned in the family court because it is somehow foreclosed by precedential rulings. And there are additionally fiscal considerations that loom large at the federal and state levels.


    Male defendants have argued that the legality of abortion under Roe v. Wade, and the mother’s constitutionally recognized right to make the decison to continue the pregancy or terminated it, breaks the causal nexus between conception and birth, and that therefore the other biological parent – who has no say in the abortion decision – should not be held legally liable for the underlying event of conception (i.e. his contribution of sperm). It was, after all, the woman’s choice to carry the pregnancy to term. In other words, that the male biological parent of the fetus/child should be able to “abort” any legal responsibility for the child, or should not be deemed a parent at all in the eyes of the law.

    Why? – Because is wasn’t his choice to “keep the baby”.

    Now, in that scenario the purpose of the male making the sex-equality/legal discrimination argument was to *avoid* the (financial) burdens of legally enforced parenthood (18 years child support, plus – in some cases, costs associated with the delivery) in a situation where his partner-in-sex had decided against an abortion and had given birth to a child that is not wanted by the other parent (him). In other words, he was complaining about being forced to be a parent against his will.


    Hochman’s scenario is even more compelling: A married male who is ready and wants to be a father – and may have gotten married with that understanding — has no rights under the legal regime in effect for about 50 years now, only responsibilities.


    Under the current supposedly liberal SCOTUS-imposed regime, the husband –whether he is a Democrat or a Republican — has no say in the wife’s decision to abort or otherwise, but he is automatically reponsible/legally liable for a child born to the mother in the event she chooses not have an abortion (under state law, i.e. the Family Code).

    And that is true even if the child is the product of adultery. It’s called the marital presumption (of parentage), previously known as the legitimacy principle and protected by Lord Manfield’s rule at common law. Look it up if interested.

    Although it may not have been the express intent of Senate Bill 6, it does have the beneficial effect of addressing that imbalance of legal power where the biological mother has sole decision-making authority, including the power to abort her child support obligation along with the fetus, while the biological father has no power and no say in the matter, only obligations. In other words, S.B. 8 advances sexual equality and fairness in regards to procreation, rather than undermining it.

    The other approach to further sexual equality in human reproduction would have been to repeal the family code section that provide for involuntary establishment of paternity, or give the man named as the father in a paternity action the option to accept or decline *legal* parenthood as a matter of *his* choice to be a parent or not. On that issue, the SCOTUS came out in defense of what were at the time called illegitimate children. On what basis? Equal protection relative to children born in wedlock. In other words, children born out of wedlock should not be treated differently by the law. That would be unfair treatment and we can’t have that as a civilized society operating under the U.S. constitution cum Civil War Amendments.  

    Voluntary fatherhood upon request, of course, would have put a lot of lawyers that Paxton’s litigation shop out of business, whose primary responsibility is to go after biological fathers, force them to undergo genetic testing if they don’t stipulate to paternity, and collect child support from them to reimburse money already paid to biological mothers who sought public assistance and had to assign their claim to child support to the OAG as a condition of receipt of services. No choice there. Just coercion. And jail, if everything else fails.

    And there is also a disproportionate enforcement against our black and brown brothers. But why would anyone care? First and foremost, these are men. Whether the deadbeat dad is purple or blue, he is still a deadbeat.  

    That prevailing sentiment acknowledged, it is important to distinguish between the class of men who want to get rid of “it” and the class of men who aspire to be fathers, analogous to pregnant women facing the prospect of parenthood and deciding which group they want to belong to, and — accordingly — whether to flush out the fetus or have it surgically extracted, depending on the gestational phase.

    Even if bio dads were given the choice to terminate their legal fatherhood – which is only a thought experiment, given the relevant SCOTUS jurisprudence – that would *not* help men who want to step up to the plate to be fathers to the kids they have sired; those who are ready and willing to make their contributions to raise the next generation.

    A generation of good men in that category has been thwarted and punished under the Roe regime, while other men — the ones who would rather just have sex and skirt the responsibilities of parenthood in the event of carelessness or contraceptive failure — have incidentally benefitted from the pregant woman’s decision to abort.  

    What he have now — to be blunt — is this: Women choice, men pay. Eigher figuratively or literally. 

    Except for those men who also want to get rid of “it” when the woman they impregnated does, and thus benefit from the woman’s decision to abort because the respective interests of both would-be-parents coincide. 

    It will alwo make you a despised outcast if you hold an academic position.

  7. C.L. says:

    Dr. Hochman, I don’t know if you’re an idiot, or an idiot. The jury is still out, but I’m leaning towards the latter. Others may be locked in on the former.

  8. […] in line with what I wanted. There’s plenty of ideas out there. We need to see them get translated into action. Sooner […]

  9. Jason Hochman says:

    policy, I think that I agree with that long statement. As a man, you have no say so if a woman wants to abort your child. Even if you are perhaps willing to raise the child as a single parent without the mother being involved.

    On the other hand, if you don’t want to be involved, the narrative switches. It is now: You need to take responsibility. You did this. You need to pay up, and we will garnish your pay for the next 20 years. Even if the man tells the woman he doesn’t want to be involved, and he will help her obtain an abortion.

    This is not equal protection.

  10. Jason Hochman says:

    Ross, abortion and Covid are the same problem, of medical tyranny and healthcare provider activism. Since the US is now communist, the central planning commission should give us guidance as to when “My body my choice” applies and when it does not, with a specific list of all possible scenarios and a determination of applies or does not apply. The same with the doctors who choose not to treat “preventable” conditions. The doctors need to nationalized and forced to work, with a central planning determination of if/when a preventable condition can be refused treatment, and a list of all preventable conditions.

    a woman having an abortion kills another person, that is an effect outside of her body. Unless her body has twenty fingers and four eyes. Also, she is potentially depriving the world of a great poet, scientist, athlete, or other great person.

    Your brainwashed thought that not getting a Covic vaccination makes you a potential killer just needs to stop. It is wrong, and it is nonsense. Never before have we blamed anyone for an illness spreading. Also the FACT is that Covid has a recovery rate over 99%. Also, another FACT is that the vaccinated can get the illness and spread the illness. It is time to admit the fact that the vaccinated are super spreaders.

    This brainwashed nonsense has caused me to need therapy. For years, my mom forced me to go to school, every day, even on those days when I had a cold. I became wracked with guilt over how many people I must have killed. My therapist has been explaining the delusion of that thought. She said that people get sick. And sometimes they die. In fact everyone dies at some point. She said that is not anyone’s fault, unless you murder or abort someone. She pointed out that any chain of events could lead to someone being injured or dying. Driving your car, for one. She also said that about 5,000 people in the US die of food poisoning, so who do we blame? The farmer that produced the food? The store that sold it? A restaurant that cooked it? The chain can go on and on. The same with an illness. My therapist said that if I went to school with a cold and gave it to a classmate, who gave it to the wood shop teacher, who then gave it to a clerk at the store, who then spread it to someone at her church, who gave it to her husband, who went to work, and gave it to someone at work, who lived with a 90 year old parent or grandparent, who got sick and died, where is the blame to be placed? Me for going to school? The person who ultimately infected the elderly person? It is just foolish thinking, but I understand, you are brainwashed by Fake News and the Big Lie.

  11. policywonqueria says:

    Q & A on SENATE BILL 8

    The Texas Monthly today has a pretty good non-polemical write-up on the the Heartbeat Act and its implications (including the legal uncertainty as to how the SCOTUS might rule in the end). First 2 articles can be read without registration/subscription. See here:

    Peter Holley and Dan Solomon,
    Your Questions About Texas’s New Abortion Law, Answered:
    Who can be sued under Senate Bill 8?
    What is the “shadow docket”?
    When will the Supreme Court rule on the merits of the law?

    TEXAS MONTHLY (Sep. 9, 2021)


    Hochman: It’s *not* true that there no legal consequences for willfully spreading a communicable disease. There are HIV/AIDS cases on that, for example. The specifics will depend on state laws, both criminal and civil, and with civil torts a lot will depend on policymaking (by other means) by appellate courts, i.e. judicial precedents (“common law”), rather than merely statutes as written.

    The analogy with natural insemination and resultant pregnancy is not a good one, however.

    Sperm is not per se a pathological agent, though sexual intercourse obviously can be a path for the transmission of disease. Nor is pregnancy a pathological conditions. Indeed, many of us arrived through a birth canal following successful completion of the pregnancy. And while that is typically medically assisted and is profitable for the health care industry (and costly to moms and dads who they have to pay out of their own pocket), it need not be so. See wiki article on –> midwifery (though that may be a recognized medical profession too, depending on jurisdiction).


    In modern family law, the theory of male parental liability is entirely based on the sperm having met and fertilized the egg (with some exceptions for medically assisted reproduction).

    That’s convenient for the State because now we have genetic DNA testing with no room for he-said-she said, and a judge can order you to consent to having your blood drawn for paternity testing at a licensed facility even when you know that you are not the father. No choice there. Contempt of court, rather.

    Marriage is irrelevant except that the husband of the birth-giving wife is automatically liable as a presumptive legal parent, whether he is the biological father or not. He would have to sue, and prove nonpaternity, to get out of it, and there is a statute of limitations on that. And the wife can terminate the husband’s parent status when it’s convient by filing a paternity disestablishment action, and then sue the bio dad/paramour as an alternative source for child support.

  12. Jason Hochman says:

    Willfully spreading a disease is different than living your life and someone, somewhere down the line, happens to get sick. Just like crashing your car and killing someone is different from intentionally running over someone.

  13. C.L. says:

    The jury is no longer out.

  14. Kibitzer Curiae says:

    There are no jury issues here; only issues of law, and mostly novel ones, as to substance.

    And all the relief that is being sought on an expedited basis (temporary restraining orders, temporary injunction, preliminary injunctions (in federal courts), and mandamus petitions) are requests for *equitable* remedies that are only granted by judges/courts, not juries.

    As for the underlying cause of a action in the state-court suits brought by Planned Parenthood and sundry abortion providers and funders, they seek a declaratory judgment. See –> Declaratory Judgments Act, Chapter 37 of the Tex. Civ. Prac. & Rem. Code, which is also the basis for their claim to make Right to Life pay their attorney’s fees.

    Incidentially, the ex-parte TRO signed by Judge Maya Guerra Gamble does not appear to conform to Rule 680. See requirements below.

    Nor does the TRO against Texas Right to Life and the indistinct flock of 100 Does make much sense once you give it some thought.

    What is the point of forbidding a SB8 lawsuit from being filed for 14 days (standard duration of a TRO) when such a lawsuit would provide an opportunity to raise all the constitutional issued against SB8 without any standing problems on the part of the abortion providers? See sundry law prof’s comments on that topic. To the extent it is obeyed, the TRO is actually counterproductive in that it prohibits the filing of what be a test case for SB8.

    Leaving that aside, the filing of an original petition per se would not cause any harm, nor trigger any instant damages award, and any and all issues of alleged harm (liability, damages) can be addressed in that lawsuit at the approriate time. So how could there be any irreparable harm in the next 14 days that would require judicial relief to avert it?

    If indeed they are sued as they say they expect to, abortion providers could then mount any and all constitutional challenges to SB8 without any standing issues on their side. Indeed, they would be in a position to immediately challenge the standing of the SB8 plaintiffs by averring that statutory standing in the absence of actual or impending harm to the plaintiffs is insufficient.

    Second, and even more importantly, while the TRO restrains the filing of lawsuit by one pro-life organization and 101 individuals, it cannot and doesn’t affect that validity or invalidity of the statewide proscription as to post-heartbeat abortions.

    That’s what the declaratory judgment would (eventually) be for, if that type of claim for declaratory relief is even allowed to go forward, or at least an ultra-vires claim against the Republican legislators who are “guilty” of voting for SB8, plus the Governor, for signing it. That latter proposition is doubtful even without any 11th Amendment and Article III concerns that some of the same plaintiffs and others are up against in federal court.

    Which is not to say that the signing of the TRO wasn’t a popular thing to do, from a political analysis perspective. So much is conceded. The propriety of the TRO is a different matter.


    No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be endorsed
    with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after signing, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. No more than one extension may be granted unless subsequent extensions are unopposed. In case a temporary restraining order is granted without notice, the application for a temporary injunction shall be set down for hearing at the earliest possible date and takes precedence of all matters except older matters of the same character; and when the application comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move
    its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

    Every restraining order shall include an order setting a certain date for hearing on the temporary or permanent injunction sought.

    See latest version of TRCP (effective Sep 1, 2021) here:

  15. […] here and here for some background, and here for a copy of the lawsuit. I am of course no legal expert, […]