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The legal situation with the heartbeat bill

I’m writing this at eight PM, and will very likely be asleep before SCOTUS takes any action, if they do take action. So let’s start with what we have as of now:

That was in reply to this:

See here for the previous entry. If I see that SCOTUS has taken action when I get up in the morning, I’ll update this post. If not, you can assume that there’s basically no such thing as abortion in Texas until further notice. And that will include medical abortion.

Two days before one of the strictest abortion laws in the country is set to go into effect in Texas, the state Legislature tentatively approved another bill Monday evening that would restrict the procedure during the first term of pregnancy.

Senate Bill 4 remains identical to the version of the bill passed by the Texas Senate. Texas Democrats were unable to attach amendments to the bill, despite more than a dozen attempts, which means the bill will head straight to Gov. Greg Abbott’s desk if it is finally approved with no changes.

The legislation would limit patients’ access to abortion-inducing pills, preventing physicians or providers from giving abortion-inducing medication to patients who are more than seven weeks pregnant. Current law allows practitioners to give these pills to patients who are up to 10 weeks pregnant.

Notably, the U.S. Food and Drug Administration set its guidelines in 2016 advising that abortion-inducing pills are safe to use up to 70 days, or 10 weeks, after initial conception.

These pills have increasingly become the most common method for women to terminate a pregnancy if they are aware of their pregnancy early enough. According to the Guttmacher Institute, a reproductive health research institute that supports abortion rights, 60% of women elect to take a pill over having surgery.

It’s grim. This bill might have a chance of being knocked down by litigation, but who can even say at this point.

It should be noted that there is some state litigation happening, but that will not have the effect of blocking SB8.

Travis County District Judge Amy Clark Meachum issued a temporary restraining order barring the anti-abortion organization Texas Right To Life; John Seago, its legislative director, and others from “instituting any private enforcement lawsuits” under SB 8 against the plaintiff, a Dallas attorney, according to the order.

But the full scope of the order was narrow, and does not apply to a majority of providers or Texans.

“While the temporary restraining order issued by the Texas state court in Austin provides some relief to the two individuals and one nonprofit organization against lawsuits from the Texas Right to Life, it does not provide the full relief needed to ensure all Texans can access their constitutional right to an abortion,” said Julie Murray, staff attorney for Planned Parenthood Federation of America.

Here’s a bit more on that litigation from KXAN:

District Judge Amy Clark Meachum considered three cases on Tuesday morning: one, brought by an attorney and sexual assault victim’s advocate named Michelle Tuegel; another brought by Bridge Collective, a resource group for people seeking an abortion; and another brought by Allie Van Stean, a woman who regularly donates to women’s health clinics.

On Tuesday morning, the judge granted temporary restraining orders (TROs) in all three instances, against the group Texas Right to Life. According to attorneys for these three plaintiffs, the TRO’s prevent Texas Right to Life from filing lawsuits under the new fetal heartbeat law, until the court can conduct a full-scale temporary injunction hearing later in September.

Their attorneys say the ruling is significant for their clients because they had to prove “probable right to relief” to get the TRO — meaning they were able to show the judge evidence supporting their challenge to the law’s constitutionality.

KXAN spoke to Van Stean earlier this month, who explained, “Simply donating to places like Planned Parenthood count as aiding and abetting an abortion… If I’m donating to Planned Parenthood, I’m not necessarily giving with the intent to assist women in getting an abortion. Planned Parenthood and other places provide necessary and needed services like birth control at a lower cost, affordable option for women who can’t afford it.”

A spokesperson for Texas Right to Life told KXAN on Tuesday, the judge’s ruling was “narrow” and does not block the Texas Heartbeat Act from being broadly enforced at midnight.

Rewire wrote a story about Michelle Tuegel, who had filed a lawsuit in Dallas. In that one she sued a whole lot of people, mostly legislators. I don’t know what happened to that suit or if it is related in some way to this one. You should read that story, which links to this one about how Tuegel won a big judgment against US Gymnastics over the Larry Nassar case. If nothing else, I’m glad to have someone like that fighting the good fight.

And that’s all I know right now. If there’s any news in the morning, I’ll include it here. Daily Kos has more.

UPDATE: No word from SCOTUS, so SB8 officially became law at midnight last night. They can – and some people think they will – still act today. But SB8 is in effect until and unless they do.

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One Comment

  1. Kibitzer Curiae says:

    PRO-LIFE ANTI-SUIT INJUNCTIONS ON DEMAND ?

    Thanks for posting the link to the TRO in Michelle Tuegel case.

    First reaction here: Pathetic.

    What is the harm here whose occurrence must be enjoined immediately and cannot be addressed later? The filing of a lawsuit by a Right to Life group to collect the $10,000 per-fetus bounty? That remedy is monetary in nature and could only be awarded – if ever — by judgment after a trial. So how does the possibility of being found liable for statutory damages some time next year or in 2023 (see SCOTX guidelines for disposition timelines for civil cases) justify emergency relief in the form of a TRO instanter? Or a temporary injunction, for that matter.

    Second, even if a novel statute provided statutory authorization for a Right-2-Life group or an out-of-the-blue plaintiff to sue a pregnant woman or an abortion-provider for injunctive relief to prevent an abortion from being undergone or being performed (as opposed to statutory money damages/award), how could that not be addressed at the TRO/TI/INJ hearing in *that* case, and on such occasion thwarted by the Defendant, who would no doubt attract high-powered litigation talent and numerous amicis curiae?

    Same for any frivolous lawsuit. There are already numerous mechanisms in place to litigants to be punished for the exercise of their putative right to petition in the form of filing and prosecuting a lawsuit: Rule 91a most notably, and various sanctions rules. How would trial judges not be able to handle ill-advised litigation when it occurs and ast as gatekeepers?

    PRIVACY RIGHT TO REMAIN UNKNOWN

    That said, a privacy interest would be at stake in being named as a *defendant* in an abortion-related matter, whether by a bona-fide religious or otherwise values-based right-2-life plaintiff or a fetus bounty hunter, but here Ms. Tuegel has already surrendered her privacy interests by naming herself as a plainitiff in a high-profile lawsuit that apparently names the State of Texas as the primary defendant, which will no doubt prompt AG Paxton to appear and assert the sundry immunities his office specializes in. So, any desire to remain anonymous (or psydonymous) can no longer be an issue here. (If there are any Jane Doe Plaintiffs in that case (as distinguished from Doe Defendants), they are not shown in the caption of the TRO.)

    Finally, from a litigation strategy perspective, the plaintiff(s)/advocate(s) here should be happy if they are promptly being sued on the private cause of action created by the heart-beat bill. And if there is an avalanche of lawsuits, rather than just a trickle, all the better, for then they will be in a position to deploy litigation resources and procedural vehicles strategically and tactically, taking venue conditions into account.

    Most importantly, if they face a judgment for the fetus bounty or multiples thereof, these litigants would clearly have standing because their money/assets are at stake, and that would allow them to challenge the validity/constitutionality of the new act in the posture of defendants and interested parties. Or so one would think. But here, they are before the court as plaintiffs.

    What exactly is their basis for standing to assert a claim against hypothetical legal opponents in lawsuits that may or may not be filed in future, and what is their justification to pre-emptively curtail the constitutional rights of abortion opponents? How is that not a prior restraint on the First Amendment activity?

    Anyhow, these are just initial impressions. The Travis County Clerk does not provide free access to court filings to the public. So perhaps there are some good legal arguments to be made that are currently being concealed from the public.

    In the interim, it looks much rather that the Texas Supreme Court’s decrepit status-quo “ruling” in the mask-mandate-injunction litigation is being mocked. Or perhaps just being applied opportunistically. The order in Tex. 21-0720 is being cited in the TRO to the proposition that preservation of the status quo is a salient consideration for the judiciary. So here the status quo would arguably be the prior ability of “pregnant persons” to obtain an abortion without the additional $10,000 civil surcharge tagged on to it (or the prospect thereof).

    This Kibitzer is willing to keep an open mind (and is admittedly not yet familiar with the legal pleadings and arguments being advanced against the pro-lifers).

    It would help if public court records in cases of public interest where actually open to the public.