Here Is Why a Texas Judge Concluded That the State’s Abortion Ban Is Unconstitutional

S.B. 8 The Texas law banning abortions after detectable fetal heart activity relies upon a new enforcement mechanism to avoid early judicial review. It allows lawsuits against “anyone” and guarantees plaintiffs minimum $10,000 in “statutory damages” plus reimbursement for their legal expenses if they prevail. A Texas judge declared yesterday that the “unique, unprecedented” arrangement is in violation of the Texas constitution’s requirements regarding civil actions and the separation and exercise of powers.

David Peeples, Travis County District Court Judge was responding to 14 lawsuits against S.B. 8. The law went into effect in September. This 48-page oration emphasizes the fact that plaintiffs are more likely to be sued than defendants under the new law.

Peeples states, S.B. Eight plaintiffs do not need to claim personal injury. The state’s attorneys “said offhandedly in papers filed with the court that “anyone” means Anyone anywhere in the world.” In practice however, he believes that S.B. Because the law modifies “the usual rules”, 8 plaintiffs will be Texas residents. According to the law, only all parties can agree on the change of venue.

Peeples states that Texas is a large state and “venue is particularly important” because it can be more expensive and inconvenient (in time and money) to have a case in another location. But venue is not just about distance and inconvenience—to choose venue is also to choose the judge (or judges) and the jury pool. This can sometimes have an impact on the outcome of the case, and even be decisive.

Peeples mentions that SB 8 gives 21+million Texas residents the ability to file enforcement actions. These cases would be heard by any of Texas’ 484 District Courts and many of its Statutory County Courts. He states that activists and litigants will “quickly discover which venues or courts are compatible with SB 8 suits” and “will “acquire the information quickly.”Filings for SB 8 will be accepted at the most favorable venues.If you support the law, and can afford to hire an attorney, it is possible for people who are like-minded in Texas to bankroll litigations.

S.B. S.B. 8 allows for lawsuits against those who aid or permit a prohibited abortion. This includes insurers and anyone who has paid for it, as well as implicitly other ancillary players. This means that the bounty could be multiplied multiple times in any one case. Peeples explains that Dr. A and Nurse B would be subject to a combined and numerous judgment of $10,000 against all four defendants, for a total amount of $10,000. “Instead the claimant would have a judgment against each defendant for $10,000 individually, for a total of $40,000—plus more if the court awards more, in addition to costs and attorney fees.”

Peeples mentions 2 other aspects of S.B. 8. that makes the risk of litigation particularly daunting. He notes that “lawyers or law firms which advise clients to file a preenforcement challenge against SB 8’s provisions may be liable for claimant’s attorneys fees,” but “a defendant wrongfully sued, and completely innocent cannot recover his attorney fees from an SB 8 plaintiff.” SB8 cases are exempt from the “longstanding rules regarding claim preclusion (res Judicialta).”

This means that a verdict against an abortion defendant doesn’t bar him from bringing additional suits against him on similar facts or the same event. He cannot be released from the sentence unless he has fully paid it.” “Second and third litigants in the same case have every right to file lawsuits in another county because, if they collect first, the judgment will block the rest.”

Peeples concludes that the Texas Constitution’s separation clause, which denies the judiciary the authority to resolve issues in the abstract, and its open courts provision (which “provides court acces only to a “person for an injury done to him”) are inconsistent. According to Peeples, Texas case law establishes that Texas standing requires some type of injury or harm.

State cited prior exceptions to this general rule. This included a 1915 Texas Supreme Court ruling that permitted a private suit under a statute that allows “any citizen” the right to injunct a “bawdyhouse.” Peeples points out that in the case at issue, plaintiff claimed that the brothel was located near his business and that he suffered economic damage. The remedy didn’t include any monetary damages.

Peeples wrote that none of the cases that mentioned statutory standing included a statute giving standing to “anyone”. The claimant could not win an amount that was significant and mandatory without showing any harm or connection to the defendant. A majority of the statute cases give the claimant standing to challenge an action taken by a Agency of the government No one gives anyone standing to demand a money judgement against another citizen and to then use the machinery and collection procedures in our laws and statutes.

Peeples believes that the analogy of S.B. and the state is inapt. 8 laws and the “private attorneygeneral” laws are inconsistencies. It is one thing to give taxpayers the right to sue government officials in order to force them to obey laws. The second is to provide money from the state Treasury to reimburse private attorneys general and compensate them for their efforts and fees. It is quite different to encourage citizens or individuals to sue other citizens in order to get money, without any pretense to compensate the claimant.

Peeples concluded that SB 8’s permission for people who haven’t been harmed, to sue others who have not hurt them, without requiring a substantial award, was unconstitutional based on relevant precedents. Peeples also believes that lawsuits allowed by S.B. He also believes that the lawsuits authorized by S.B.A unsupervised, unsupervised delegation of enforcement power to private parties“, which “violates Texas Constitution’s separation-of-powers provision.”

Peeples agrees with plaintiffs as well that S.B. 8 is against the 14th Amendment’s right to due process. He states that SB 8 does not provide for compensatory damages and is not an American form of statutory liquidated damage. The statute allows punishment through civil litigation and the deprivation or forfeiture of property without due process.

S.B. Peeples states that 8 “cannot legally be punitive” without respecting at least some constitutional rights and criminal case procedures. SB 8 doesn’t satisfy constitutional due process. Instead, it reduces civil litigants’ procedural rights such as the court or jury. Please be discreetAssess damages fair noticeThese are some of the factors that the court or jury might consider before deciding whether to pay more than what is required by law.

Peeples dismissed the argument of S.B. 8 is a violation of a Texas Constitution-protected right to abortion. He also did not discuss whether the law was consistent with U.S. Supreme Court abortion precedents. He devotes several paragraphs on a concern Justice Brett Kavanaugh had raised during the Supreme Court’s review of whether S.B. Federal courts can’t rule on the constitutionality of the law before they have been implemented because 8 relies on private civil action: This is the same tactic that Texas legislators use to delay judicial review.

Peeples warned that “in our polarized nation,” “other states might choose to use this procedure to expel other people or stamp out bad behavior. Of course, the undesired actions targeted by other states might differ from Texas abortion providers.

One state may, for instance, copy the procedures to replace abortion provisions with language prohibiting them. Openly carrying Guns, and language that requires trigger locks All guns are prohibited.” “A state might use procedures to enforce discrimination law against bakery owners who won’t, as a matter-of-conscience, decorate a cupcake with an offensive message or violate their religious beliefs.” The “adapt” clause could allow legislators to attack Constitutionally protected speech.[ing]This procedure is used to isolate climate change deniers or people who utter hate speech’. Pro-life activists could be censored by allowing lawsuits to be filed against them.

It’s not surprising that conservatives applaud S.B. 8 who support abortion will not like it when other people use the same method to advance their views. “We are a diverse and creative people, and it seems naïve to hope these procedures will be cabined voluntarily once they are upheld,” Peeples writes. An ever-changing and innovative series of statutes may appear each year. They could be enforced year by year by ideological claimants. These people could file suit in their own counties where judges could enforce the law and fulfill their constitutional duty. Pandora’s Box is already partially opened, but time will reveal the truth.

Texas will appeal Peeples’ decision. According to Julie Murray (a senior staff attorney for Planned Parenthood), “We’ve always said that in Texas we must fully restore abortion access.” The New York Times. “While today’s decision represents a significant step forward, it doesn’t provide sufficient relief for providers of abortion.”