SB8 interpretation question
August 31, 2021 4:25 PM Subscribe
Is Texas's new law banning abortion a rocket launcher that can be pointed anywhere, or am I missing something?
I was reading through the Texas "bring back the coat hangers" law and ran into this:
171.208, section 3(i):
(i) Notwithstanding any other law, a court may not award costs or attorney's fees under the Texas Rules of Civil Procedure or any other rule adopted by the supreme court under Section 22.004, Government Code, to a defendant in an action brought under this section.
This applies to everyone right? Anyone sued under this law? No matter who they are? They don't need to be a doctor or work at a clinic, there just needs to be a suspicion that they helped someone obtain an abortion. And they cannot recover attorney's fees.
Given the burden of proof being on the defendant, the impossibility of recovering fees, pro se filing, and what looks to be an attempt to step around anti-SLAPP provisions, this could be weaponized by any group.
Reading through the law, it seems like this is legal. What am I missing, as this looks to be an indiscriminate weapon, not a narrowly targeted one.
I was reading through the Texas "bring back the coat hangers" law and ran into this:
171.208, section 3(i):
(i) Notwithstanding any other law, a court may not award costs or attorney's fees under the Texas Rules of Civil Procedure or any other rule adopted by the supreme court under Section 22.004, Government Code, to a defendant in an action brought under this section.
This applies to everyone right? Anyone sued under this law? No matter who they are? They don't need to be a doctor or work at a clinic, there just needs to be a suspicion that they helped someone obtain an abortion. And they cannot recover attorney's fees.
Given the burden of proof being on the defendant, the impossibility of recovering fees, pro se filing, and what looks to be an attempt to step around anti-SLAPP provisions, this could be weaponized by any group.
Reading through the law, it seems like this is legal. What am I missing, as this looks to be an indiscriminate weapon, not a narrowly targeted one.
Yup, it’s incredibly terrible! In basically every way!
posted by rockindata at 4:42 PM on August 31, 2021 [6 favorites]
posted by rockindata at 4:42 PM on August 31, 2021 [6 favorites]
Yep, you understand it correctly, it's incredibly fucked up.
posted by DTMFA at 4:49 PM on August 31, 2021
posted by DTMFA at 4:49 PM on August 31, 2021
It's designed in this way specifically so that nobody can sue Texas over it at all. It makes it so that the state AG etc can't enforce the law, so you can't just sue the AG in federal court and obtain an injunction.
By making the enforcers "anyone but the state of Texas", even getting the matter before a court is not obvious. It's a breathtakingly cynical attempt to subvert the Constitution.
Doing it this way has all sorts of terrible consequences, but the motivation is just to try and prevent it from being subject to judicial review at all.
posted by BungaDunga at 4:55 PM on August 31, 2021 [5 favorites]
By making the enforcers "anyone but the state of Texas", even getting the matter before a court is not obvious. It's a breathtakingly cynical attempt to subvert the Constitution.
Doing it this way has all sorts of terrible consequences, but the motivation is just to try and prevent it from being subject to judicial review at all.
posted by BungaDunga at 4:55 PM on August 31, 2021 [5 favorites]
Texas has 254 counties. What's to keep a well financed group from getting hundreds of people to file suit against a targeted Republican? If you don't show up according to the article, you automatically lose and face a $10,000 judgement. Even four lawsuits in each county filed a couple of weeks apart by different people would be 1000 lawsuits to deal with.
posted by Grumpy old geek at 5:45 PM on August 31, 2021 [5 favorites]
posted by Grumpy old geek at 5:45 PM on August 31, 2021 [5 favorites]
Response by poster: I guess I wasn't clear with my question here: given all this, could it be used to sue a bunch of pro-life groups into the ground with pro se filings? No one would win the lawsuits, but the pro-life groups cannot collect attorney's fees. And the burden of proof is on the pro-life groups (or say, their leaders) to prove that they are not secretly getting their mistress's/wives/daughters abortions on the dl? Could Abbot be sued under this law for helping get someone an abortion? If you get into a property line case with your neighbor, could you start filing these lawsuits to make it so that they cannot pay for an attorney to represent them in court for other cases?
posted by Hactar at 5:47 PM on August 31, 2021 [3 favorites]
posted by Hactar at 5:47 PM on August 31, 2021 [3 favorites]
Current Emergency Appeal: Abortion providers ask U.S. Supreme Court to block Texas' six-week ban (CNBC, updated today); Washington Post article, reprint, "Abortion-rights advocates Monday asked the U.S. Supreme Court to block a Texas law from taking effect this week that allows private individuals to sue to enforce a ban on abortion after about six weeks of pregnancy:" The law incentivizes citizens to sue anyone suspected of helping a woman get an abortion, including people who drive a patient to a Texas clinic or provide financial help. Under the ban, those who successfully sue an abortion provider or health center worker are awarded at least $10,000.
From July: Abortion providers sue judicial officials over citizen-enforced Texas abortion law (ABA Journal)
Legal musings:
Perhaps most troubling is that these proposals would impose liability on people whose actions were legal at the time they took them. The bill specifically prohibits the defense that a party relied on a court decision that was valid at the time of their actions but that was later overruled—meaning even if a person was following the law, they could still be liable if the law changed later. This type of ex post facto liability violates the very bedrock of our legal system which requires notice and due process before imposing liability. (from "Open letter in opposition to HB 1515 and SB 8 from the Texas legal community," 350+ signatures)
posted by Iris Gambol at 7:14 PM on August 31, 2021 [3 favorites]
From July: Abortion providers sue judicial officials over citizen-enforced Texas abortion law (ABA Journal)
Legal musings:
Perhaps most troubling is that these proposals would impose liability on people whose actions were legal at the time they took them. The bill specifically prohibits the defense that a party relied on a court decision that was valid at the time of their actions but that was later overruled—meaning even if a person was following the law, they could still be liable if the law changed later. This type of ex post facto liability violates the very bedrock of our legal system which requires notice and due process before imposing liability. (from "Open letter in opposition to HB 1515 and SB 8 from the Texas legal community," 350+ signatures)
posted by Iris Gambol at 7:14 PM on August 31, 2021 [3 favorites]
It's a breathtakingly cynical attempt to subvert the Constitution.
And thanks in no small part to our last president's laser focus on the judiciary, it's one that, depressingly, will probably work.
posted by pdb at 8:47 PM on August 31, 2021
And thanks in no small part to our last president's laser focus on the judiciary, it's one that, depressingly, will probably work.
posted by pdb at 8:47 PM on August 31, 2021
I guess I wasn't clear with my question here: given all this, could it be used to sue a bunch of pro-life groups into the ground with pro se filings? No one would win the lawsuits, but the pro-life groups cannot collect attorney's fees.
Not 100% clear to me, but I think a judge could still sanction an attorney who is bringing a completely frivolous action, or one that has no factual basis. The bar could also sanction attorneys who are bringing actions with no factual basis. So there are still limits on what lawyers are allowed to do. Even if there are no SLAPP-like penalties, someone who brought non-factual cases to the court would still be subject to ethics rules.
posted by mr_roboto at 10:22 PM on August 31, 2021 [2 favorites]
Not 100% clear to me, but I think a judge could still sanction an attorney who is bringing a completely frivolous action, or one that has no factual basis. The bar could also sanction attorneys who are bringing actions with no factual basis. So there are still limits on what lawyers are allowed to do. Even if there are no SLAPP-like penalties, someone who brought non-factual cases to the court would still be subject to ethics rules.
posted by mr_roboto at 10:22 PM on August 31, 2021 [2 favorites]
pro se filing
Overlooked this.
Yeah, I have no idea how that would work. Judges could slap down individual "bad actors", but what if there are 100,000 bad actors? Good point.
posted by mr_roboto at 10:29 PM on August 31, 2021 [3 favorites]
Overlooked this.
Yeah, I have no idea how that would work. Judges could slap down individual "bad actors", but what if there are 100,000 bad actors? Good point.
posted by mr_roboto at 10:29 PM on August 31, 2021 [3 favorites]
I think it would be easy enough to find a very tenuous link to some who aided an abortion. If Ted Cruz gave $5 to a homeless person (ha ha ha) and that person paid for a girlfriends abortion or even put gas in the car to drive to an abortion clinic, then there is no bad faith. As I understand it, losing one lawsuit does not immunize you from further suits. What's to prevent someone going through courthouse records, finding the losers of cases and then filing their own. Lose once and the line forms to the left of the other 29 million Texans filing suit. Even with one legitimate case, courts all over Texas could be clogged. Any Texan can file in any county no matter what county the violation occurred in. As written, it seems rife for abuse. A little research could probably find a link from any top Republican (or Democrat) to an abortion. Could we shutdown a Catholic hospital if they did a D & C to remove an ectopic pregnancy if it was over six weeks?
posted by Grumpy old geek at 3:59 AM on September 1, 2021
posted by Grumpy old geek at 3:59 AM on September 1, 2021
Even if you can use this law to screw with the Texas courts and politicians, abortion will still be illegal, which they will likely consider more than worth the pain. They can leave the law in place for a while and squeeze abortion providers to death, and then amend it to cut down on the chaos in the courts while still holding a sword of Damocles over the heads of anyone running an abortion fund or thinking about providing them again. Maybe make it cost $1000 to file a suit to cut down on pro se litigants or create a rule to allow partisan state judges to toss lefty suits against politicians, there's lots of things they might add later if it becomes a problem.
And this is all moot if SCOTUS explicitly overrules Roe in the next session, if that happens they can just trash this law and replace it with criminal penalties.
posted by BungaDunga at 9:16 AM on September 1, 2021 [1 favorite]
And this is all moot if SCOTUS explicitly overrules Roe in the next session, if that happens they can just trash this law and replace it with criminal penalties.
posted by BungaDunga at 9:16 AM on September 1, 2021 [1 favorite]
I can’t get my head around how this won’t be weaponized on both sides. Aren’t a bunch of TikTok kids just going to perform a Denial of Service on the courts and claim their Republican neighbor had an abortion? How will a citizen prove someone or themselves did or didn’t have an abortion? What am I missing.
posted by jasondigitized at 8:18 PM on September 1, 2021
posted by jasondigitized at 8:18 PM on September 1, 2021
Vox published a readable overview of the law today; excerpt: The anti-abortion law, which is before the Supreme Court in a case called Whole Woman’s Health v. Jackson, presents a maze of procedural complexities that are rarely seen in even the most complicated litigation. The law appears to have been drafted to intentionally frustrate lawsuits challenging its constitutionality. And Texas, with an assist from a right-wing appellate court, has thus far manipulated the litigation process to prevent any judge from considering whether SB 8 is lawful. [...]
Finally, it’s worth noting that this case arose on the Supreme Court’s “shadow docket,” a mix of emergency motions and other expedited cases that do not receive full briefing or oral argument. Historically, the Court was reluctant to hand down major, precedent-setting decisions on its shadow docket because of the risk that the justices will hand down an erroneous decision without fully understanding its consequences.
But by refusing to stop a law that violated decades-old precedent protecting the constitutional right to an abortion, the Court effectively did change that precedent.
posted by Iris Gambol at 8:52 PM on September 1, 2021
Finally, it’s worth noting that this case arose on the Supreme Court’s “shadow docket,” a mix of emergency motions and other expedited cases that do not receive full briefing or oral argument. Historically, the Court was reluctant to hand down major, precedent-setting decisions on its shadow docket because of the risk that the justices will hand down an erroneous decision without fully understanding its consequences.
But by refusing to stop a law that violated decades-old precedent protecting the constitutional right to an abortion, the Court effectively did change that precedent.
posted by Iris Gambol at 8:52 PM on September 1, 2021
on twitter via metafilter, a UC Davis Law professor says:
Lets send a message to SCOTUS.
RT if you support CA or NY lawmakers passing a law to let private persons sue (in state court) any corporation for $10,000 each time it spends money to influence a political campaign.
We see your bet against Roe and raise you a Citizens United
posted by aniola at 2:04 PM on September 3, 2021 [1 favorite]
Lets send a message to SCOTUS.
RT if you support CA or NY lawmakers passing a law to let private persons sue (in state court) any corporation for $10,000 each time it spends money to influence a political campaign.
We see your bet against Roe and raise you a Citizens United
posted by aniola at 2:04 PM on September 3, 2021 [1 favorite]
Presumably the remedy for baseless suits filed to harass (whether against women seeking or others 'facilitating' abortion, or politicians supporting the bill), aside from any sanctions, is an abuse of process claim. But typically you have to prevail in the underlying case first, you can't bring it as a counterclaim.
Three elements are necessary to establish the tort of abuse of process: (1) the defendant made an illegal, improper or perverted use of the process, a use neither warranted nor authorized by the process; (2) the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of the process; and (3) damage to the plaintiff as a result of such illegal act.
Cooper v. Trent, 551 S.W.3d 325, 333–34 (Tex. App.-- Houston[14th Dist.] 2018, pet. denied); RRR Farms, Ltd. v. Am. Horse Prot. Ass'n, 957 S.W.2d 121, 133 (Tex. App.—Houston [14th Dist.] 1997, pet. denied); Bossin v. Towber, 894 S.W.2d 25, 33 (Tex. App.—Houston [14th Dist.] 1994, writ denied).
there's lots of things they might add later if it becomes a problem.
a verification requirement would allow them but not require them to arrest perjurers.
posted by snuffleupagus at 4:49 PM on September 3, 2021 [1 favorite]
Three elements are necessary to establish the tort of abuse of process: (1) the defendant made an illegal, improper or perverted use of the process, a use neither warranted nor authorized by the process; (2) the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of the process; and (3) damage to the plaintiff as a result of such illegal act.
Cooper v. Trent, 551 S.W.3d 325, 333–34 (Tex. App.-- Houston[14th Dist.] 2018, pet. denied); RRR Farms, Ltd. v. Am. Horse Prot. Ass'n, 957 S.W.2d 121, 133 (Tex. App.—Houston [14th Dist.] 1997, pet. denied); Bossin v. Towber, 894 S.W.2d 25, 33 (Tex. App.—Houston [14th Dist.] 1994, writ denied).
there's lots of things they might add later if it becomes a problem.
a verification requirement would allow them but not require them to arrest perjurers.
posted by snuffleupagus at 4:49 PM on September 3, 2021 [1 favorite]
This thread is closed to new comments.
posted by BungaDunga at 4:41 PM on August 31, 2021 [5 favorites]