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.
A DIFFERENT TAKE ON SLAPPING THE RULE 202 PETITIONERS
When the media obtains input and commentary only from one side, the resultant assessment will be one-sided. Hardly surprising. And Prof. Vladeck is on record for the pro-abortion side. That includes participation on the lawfare front with an amicus on UT Law School letterhead in the MDL litigation, albeit with an “in propria persona” disclaimer. But with state seal prominently featured in the masthead (unlike, by way of juxtaposition, frequent friend of the court on administrative law and other public law issues Ron Beal, emeritus professor of law). Professor Rocky likewise is a committed academic abortion warrior. And his colleague of more conservative inclinations, Professor Blackman, apparently no longer gets asked.
That said, Kuff runs a proprietary and partisan blog, so the criticism of the quality media regarding one-sidedness does not apply to him. He could even suppress disagreeable viewpoints or disable the comment space to keep out discordant sounds, Wassermensch-like.
But the government itself, and its courts, are bound by the First Amendment and not supposed to engage in viewpoint discrimination, and that is highly relevant in this controversy.
While this recent quartet of lawsuits may have appreciable PR value, Kibitzer Curiae would respectlessly retort that these filings are duds. Here is why … and – by all means — feel free to disagree and offer your own free-range punditry to the contrary, thus enriching the marketplace of opinionated commentary.
THE TWO NEW PRE-ENFORCEMENT ACTIONS IN STATE COURT ARE SIDE-LINE ATTACKS ON PENDING CASES
On first glance, the two state lawsuit seems to be a clever way to add two new defendants to the MDL litigation with the benefit of already knowing who the judge is (David Peeples) and how this judge would rule (because he has already ruled in more than a dozen similar cases).
But how about the remainder of humanity that qualifies as “any person” under SB8? Assuming arguendo that an injunction would be entered against these two additional defendants (perhaps even by agreement), it wouldn’t prevent others from suing on the same facts, and make use of the normal discovery tools available in a lawsuit, rather than invoking the presuit mechanism under Texas Rule of Civil Procedure 202 (Rule 202).
Further, Judge Peeples’ summary judgment rulings in the MDL set of cases are only preliminary, and they aren’t even all in favor of the plaintiffs, a state of affairs they don’t even acknowledge. What they do acknowledge is that the consolidated MDL cases are currently on appeal. But the appeal is from the part of the order that denied the pro-life defendants’ motion to dismiss under the Texas Citizens Participation Act (TCPA). Until the Court of Appeal resolves the appeal with an opinion, there is no precedent in the third appellate district, not to mention statewide. And if the Austin Court of Appeal rules for the plaintiffs, a further appeal to the Texas Supreme Court can be expected by Texas Right to Life and John Seago. Suffice it to point out that the Third Court of Appeal is Dem-heavy, while the SCOTX is all-GOP, and the respective prevailing sentiments and sympathies well known.
THE IMPENDING ENCORE
Because the two new state-court suits are so similar to the prior set of 14, they are eligible to be transferred and made part of the MDL litigation in Austin as MDL “tag-along” cases even though they were filed elsewhere. In other words, filing venue under the venue rules doesn’t matter. Which is an irony all by itself, because the provider plaintiffs, helpers, and friends complain, inter alia, of unfavorable venue rules contained in SB8.
But the two additional suits are likewise subject to being challenged under the TCPA as being retaliatory and suppressive of the defendants’ right to exercise their first amendment rights. Arguably even more so because the new lawsuits are expressly based on the defendants’ exercise of their right to petition (i.e., their filing of Rule 202 petitions).
Here is an obvious problem: Rule 202 petitions are authorized by statute and Supreme Court court rules. If the abortion funders think that there is something wrong with the Rule 202 mechanism, they can take it up with the Legislature. There is nothing obviously unconstitutional with Rule 202 proceedings, which are used for many divergent purposes.
And on the merits of invoking Rule 202 under these particular circumstances, the respondents can air their objections in those very cases even if they can’t assert a counterclaim in them. To file a second lawsuit to complain about an opponent’s use of an established litigation mechanism seems rather baseless, especially when there is not even a ruling yet one way or the other in the Rule 202 proceeding.
After all, short of malicious prosecution, the filing of a petition isn’t wrongful. It’s an exercise of the right to petition, which the plaintiffs are themselves exercising likewise.The right to petition doesn’t equate to an entitlement to prevail. of course. And that goes for a Rule 202 petition as well as any other petition. That’s where adjudication comes into play: First jurisdictional threshold matters, then the merits, if jurisdictional requisites are satisfied.
Up next: Some irreverent thoughts on the “brilliant” idea of petitioning federal courts far afield from Texas to take away the right to petition from one’s ideological opponents.
ON THE TWO NEW ACTIONS OUTSOURCED TO OTHER STATES
As for suing pro-life organizations in other states, and in federal court, there are additional problems, leaving aside the issue of invoking government power (third branch power) in a bid to suppress civil litigation based on the viewpoint of the defendant.
First, where is the basis for federal jurisdiction, and why is the action brought in DC and Chicago?
The ostensible reason for the venue choice is that the nonprofit defendants are resident there, but the dispute involves Texas law and seeks injunctive relief against litigation activity in the Texas state court system. So how is it proper for courts far afield to resolve such issues remotely and consider putting shackles on would-be litigants in Texas in telescopic long-arm fashion? It will be interesting to see whether the defendants move for transfer to Texas or mount their defense on their home turf.
As for restraining state-court litigation activity as such, federal courts can’t generally be invoked to interfere with ongoing state-court proceedings under various comity and abstention doctrines. Nor can appeals be taken from state trial courts to federal trial courts.
RIGHT TO PETITION FOR THE PRO-CHOICE CAMP, NOT FOR ANTI-CHOICERS?
On the substance of their pre-enforcement action, the organizational plaintiffs are invoking the right to petition to deny their organizational opponents on a matter of public concern their corresponding right to petition, and are trying to do so with federal court assistance. In other words, they are bringing SUIT and thereby invoking federal power to deprive their ideological opponents on the other side of the divide the right to exercise their First Amendment rights through an ANTI-SUIT injunction. This is a nonstarter. If first-amendment rights mean anything, they can’t just be available to one side on an ideological or partisan divide. Much less being exercised to suppress the rights of the opponents, silence them and handcuff them, so they can’t efile their own legal actions. Not even previously-adjudicated vexatious litigants can be barred from access to the court and from bringing any and all lawsuits in future.
COURTING DISMISSAL
Even assuming that the federal district courts in DC and Chicago won’t allow the defendants to invoke the Texas anti-SLAPP act (i.e., the TCPA, as in the MDL litigation in state court), they can’t stop them from using other bases for dismissal, before even reaching the issue of one side asserting constitutional claims in an effort to suppress the other side’s exercise of constitutional rights. See, relatedly, yesterday’s unanimous SCOTUS decision in Wilson v. Houston Community College, U. S. ____ (2022) [No. 21-5592]. (The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy, but it cannot be used as a weapon to silence other representatives seeking to do the same). https://www.supremecourt.gov/opinions/21pdf/20-804_j426.pdf
To begin with, what is the basis for federal-court jurisdiction here?
The Rule 202 proceedings involve no claim for money damages (because that’s not even possible), and the proposition that the pro-life organization will bring an SB8 suit for more than $75,000 to satisfy the diversity jurisdiction threshold is even more speculative than the proposition that they will sue at all and that such suit is imminent. In order to make out a case for a federal injunction, however, the plaintiff would have to make a showing of impending threat of harm that is cognizable in federal court. And even if an SB8 suit were imminent, they could immediately invoke whatever state or federal constitutional defenses they have. Additionally, they could contend – in a plea to the jurisdiction – that the out-of-state pro-life organizations lack standing to sue in Texas and ask for a ruling before discovery even gets under way or an answer would be due.
ANTICIPATING WHAT THE OTHER SIDE WILL DO
Think about it: If the pro-life organizations want to sue under SB8 but stay out of federal court, wouldn’t they just plead for less than $75,000, thus avoiding removal? And that doesn’t even consider the forum-defendant rule. SB8 created a cause of action under state law, so any claim based on it does not arise under federal law. Only the defense to it under the Roe and Casey precedents (and sundry other federal constitutional arguments) would implicate federal questions, but that’s not enough to remove to federal court.
In short, it is not clear why these cases should be litigated in DC and Chicago, respectively, and why they would be eligible to be litigated *in any* federal district court at all.
The plaintiffs’ attorneys fudge the import of Judge Peeples’ order declaring (parts of) SB8 unconstitutional. Even if these rulings (which are interlocutory at this juncture) were to survive on appeal, they would interpret and apply the Texas constitution, not the federal one. And the Texas Supreme Court would have the last word on these state constitutional claims, not the SCOTUS. And if the state constitutional challenge succeeds, it would render federal constitutional claims redundant.
THE PROSPECT OF USELESS PRECEDENT
Furthermore, even if these two federal cases proceed thanks to “friendly” federal judges in the first instance, their rulings would be subject to review by federal circuit courts that don’t create binding precedent even for federal courts in Texas (which is within the jurisdiction of the Fifth Circuit), not to mention for state courts in Texas. And district court rulings create no binding precedent at all, whether in the federal or the state court system. They only bind the parties to the case, subject to any available appellate review and possible reversal or vacatur.
STANDING & JUSTICIABILITY IN STATE COURTS NOT CONSTRAINED BY ARTICLE III
An additional problem here is that a critical antecedent issue for SB8 litigation (as distinguished from the proscription component of SB8) involves state law governing civil litigation. Most notably, standing to sue in state court. Article III imposes jurisdiction limits on federal courts. Unlike their federal counterparts, however, state district courts are courts of *general* jurisdiction, and federal courts can’t dictate whether, and to what extent, the Texas Supreme Court will follow Lujan and related federal Article III jurisprudence on the question of state constitutional standing.
Nor can federal courts dictate to the Texas Legislature and stop it from enacting citizen-suit statutes. Further, the mere fact that SB8 doesn’t require a showing of injury is irrelevant because the state constitutional standing determinations are made by courts in actual cases irrespective of what the statute says. If a statute says that damages are required as an element of a viable claim (as in DTPA cases, for example), the courts will enforce that requirement. If the statute is silent on the matter of a predicate injury to assert a claim, lack of a plaintiff’s standing might nevertheless preclude relief at the outset of the case as a threshold jurisdictional matter.
STATE SUPREMES CONSTRUE STATE CONSTITUTION, INCL. THE OPEN-COURTS PROVISION
If the Texas supremes see fit, once they are presented with an appropriate case, they can hold that an SB8 plaintiff must show an interest that goes beyond merely qualifying as an “any person”. The SCOTX might hold, perhaps, that persons who are not residents of Texas cannot sue under SB8 because they are not subject to Texas law in general, for good or bad. Why should a foreigner be able to avail himself of the right to access Texas courts when he has no connection to the state other than an Internet connection to efile a lawsuit? This would be the flip side of foreign defendants not being subject to suit in Texas in the absence of a connection that confers personal jurisdiction over them.
STATE-COURT LITIGATION ON STATE-LAW ISSUES IS ALREADY IN PROGRESS
Because these matters of state law (both standing/justiciability and merits issues) are already being litigated in the state-court system in Texas, federal courts will have even more reason to abstain (assuming they could even have jurisdiction under Article III). This is because Texas state courts of appeal, and ultimately the Texas Supreme Court, could render the federal constitutional challenges to SB8 moot.
And even if the two new federal cases were to reach the 7th Circuit or the DC Circuit, these courts would either have to Erie guess to resolve the relevant state-law questions, or farm them out to the Texas Supreme Court via the certified question procedure: Such as the question of who has – and has not — state constitutional standing to bring an SB8 suit in a Texas state court. The 5th Circuit makes these referrals regularly. See today’s Kuff’s post on “Fifth Circuit asks SCOTx for help on some SB1 issues.
If these far-off federal appellate courts issue an opinion in favor of the abortion plaintiffs without consulting the Texas Supreme Court — whether on statutory standing or other merits issues — it won’t directly affect the enforceability of SB8 in Texas. It might at best create a circuit split with the Fifth Circuit that would give the SCOTUS an additional reason to take up the next case involving SB8. But Dobbs will presumably be decided in the interim, and that could be the ultimate game-changer.
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