Meanwhile, a group of lawsuits is proceeding in state court after a hearing in Austin on Wednesday — and they could be better positioned to challenge the law.
Judge David Peeples heard arguments from various abortion clinics, counselors, and supporters against pro-life lobbying group Texas Right to Life all day on Wednesday. Since all 14 lawsuits share the same basic facts and claims, the Supreme Court of Texas let the cases be consolidated into one through the Texas Multi-District Litigation (MDL) Panel. The panel selected Peeples to preside over them.
The conflict at the heart of all 14 cases began before the law took effect.
The Heartbeat Act, passed during the 87th Texas legislature as Senate Bill (SB) 8, outlaws the abortion of unborn children with a detectable pulse, which typically develops around six weeks into a pregnancy. The law forbids the government from enforcement and instead creates a private cause of action, letting “any person” sue violators for damages of at least $10,000. The mother herself cannot be sued, and fathers that conceived the aborted child out of rape or incest cannot sue.
Before the law took effect, Texas Right to Life (TRTL) encouraged and planned to participate in these lawsuits. In response, a number of Planned Parenthood clinics and abortion advocates sued the group to preemptively stop TRTL from enforcing SB 8 against them. Due to their similarity, the cases were consolidated into an MDL case in October.
Much of the debate on Wednesday involved whether or not the judge’s action could resolve the case — a central element of judicial standing.
Though their case is limited to a single group, the abortion providers and advocates have framed it as the sole major challenge to the Heartbeat Act’s constitutionality in state court. The plaintiffs specified on Wednesday that a declaratory judgment from Peeples could persuade other judges to enjoin the law itself more totally.
“There is clearly a controversy between the parties before you about whether SB 8 is constitutional. Your declaration can resolve that controversy,” one of the plaintiffs’ attorneys said.
“[State court precedent] makes clear that plaintiffs who are seeking pre-enforcement review of a challenged law can do so where they have intent to engage in a course of conduct that’s constitutionally protected but proscribed by the challenged law.”
In response, TRTL argued that Peeples could not resolve the conflict or redress the harm that the plaintiffs claim they have suffered under the law. Even if Peeples were to issue an order that stops TRTL from suing the plaintiffs, they would not resume aiding or performing abortions since they would still be subject to suit from anyone else.
“The injury that they’re complaining of has nothing to do with Texas Right to Life… A declaratory judgment can only run against the parties to this case,” one of the TRTL attorneys said.
The only alternative, TRTL argued, would be an advisory opinion that carries no effective weight. Advisory opinions from a court are typically considered unconstitutional in Texas and federal law since they do not resolve a real controversy, which is required under the Third Article of the Constitution.
“An order of this court will not redress the injury they say they are suffering,” TRTL claimed.
Defenders of SB 8, from TRTL in state court to the State of Texas in federal court, have said that state court is the proper place to challenge the constitutionality of the law. However, TRTL said on Wednesday that the plaintiffs were not in the “proper posture” to challenge the validity of SB 8 since they were suing instead of defending themselves in an SB 8 suit.
Peeples expressed skepticism and asked TRTL to unravel the apparent catch-22.
“Would it be your position that nobody has standing to make a pre-enforcement challenge to this law?” Peeples asked.
“If you transplant these rules, these procedures to other areas, it just seems troublesome to me that there would be no standing for someone.”
TRTL gave no specific counterexample but said that a valid pre-enforcement challenge to SB 8 “would be difficult” though possible.
On the other side of the aisle, Peeples grilled the plaintiffs on their claims that the law’s rules for lawsuit participants are unconstitutional.
If a person sued for violating SB 8 loses in court, he or she must pay the prevailing party’s court and attorneys’ fees in addition to the $10,000 damages. However, the same provision does not apply if the claimant loses.
SB 8 also says that people sued for alleged violations cannot defend themselves by claiming that they thought their behavior was constitutionally protected.
“The legislature doesn’t get to tell courts what to do with respect to their adjuticative process,” the plaintiffs said of these rules. “This is the only statute that I’m aware of where the legislature is limiting defenses.”
Peeples was not convinced that rules like these, especially regarding what defenses a defendant can claim, are unique to SB 8.
“When push comes to shove, it’s quite a stretch to say ‘issue preclusion.’ I’m not aware that very much has been done by any legislature in that area to say that’s a judicial issue that the legislature can’t touch.”
While Peeples’ judgment is forthcoming, he said on Wednesday that SB 8 presents novel challenges that may surpass the standards laid in place by previous cases.
“There is no existing law squarely on point, the point being a statute that has several procedures that have never come together before,” Peeples said.
“I’m just wondering if a Pandora’s Box has been opened.”
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