A long strange trip it has been.
Right there with them
A state district judge on Wednesday morning heard arguments from abortion rights groups challenging Texas’ restrictive abortion law in what seems to be the first court hearing to specifically tackle the statute’s constitutionality.
David Peeples, a retired state magistrate judge, presided over the eight-hour hearing. He didn’t make a ruling Wednesday but is expected to make one soon after he receives additional filings from both the abortion rights groups and Texas Right to Life, a prominent anti-abortion organization and a defendant in the suits.
Peeples is considering over a dozen cases filed in state court challenging Senate Bill 8, which effectively bans abortions after about six weeks. These lawsuits — filed by Planned Parenthood, doctors, social workers, abortion fund organizations, practical support networks and lawyers — were consolidated by Texas’ multidistrict litigation panel to be heard together.
Attorneys for the 14 cases argued that the law is unconstitutional. Planned Parenthood sought an order blocking the law, while plaintiffs in the 13 other suits asked the judge to issue declaratory judgment of the constitutionality of the law, a legal maneuver used to resolve legal uncertainty in a certain case.
“In short, SB8’s enforcement mechanism, created to subvert one constitutional right, violates the Texas and United States Constitutions,” wrote attorneys representing the plaintiffs in the 13 other suits.
The suits target Texas Right to Life, which helped draft Texas’ law and has vowed to sue violators, even though the group has not filed suits against anyone as of yet.
Texas Right to Life argued that the plaintiffs can’t prove they’ve been injured by the law, and even if they did, the court has no jurisdiction to issue an order blocking the law. Furthermore, since it hasn’t actually filed any suits against people who have violated Texas’ abortion law, the organization argued it isn’t a proper defendant in the case. Its attorneys also argued the abortion rights groups were asking for an overly broad declaration to block cases that might hypothetically be filed.
See here, here, and here for some background. There’s video of the hearing here. The argument made by Texas Right to Life about how they couldn’t possible be sued for any of this, and the plaintiffs’ argument that the law has to be stopped at its root because the piecemeal approach fundamentally deprives them of their rights has been a part of this from the beginning and was a key element in the federal hearing before SCOTUS earlier this month. As before, I have no idea what the court might do or how long it might take to do it, but in this case I feel confident saying that it won’t be the final word. One way or the other, this will end up before the state Supreme Court. They may have some guidance from SCOTUS by then, but they’ll still have to grapple with those questions on their own. The Chron has more.
It will be interesting to see that happens here. … lots of procedural complexity.
Judge Peeples seemed inclined to get it all over with and up the appellate ladder, without multiple trips up and down, but there are problems:
If he denies the motion for summary judgment, it’s not appealable. If he grants it, he will likely be reversed, but perhaps not until the SCOTX gets to it, which could be quite a bit later. So the abortion providers may have a win in the short term, followed by a reversal down the road, and uncertainty whether they can rely on the “win” that may not be permanent.
And there are two countermotions by Texas Right to Life et al in the interim:
A MOTION TO DISMISS UNDER THE TEXAS CITIZEN PARTICIAPTION ACT (TCPA)
“The conduct for which the defendants have been sued is based on their exercise of the right of free speech, the right to petition, and the right of association. See Tex. Civ. Prac. & Rem. Code § 27.003(a). And the plaintiffs cannot establish by clear and specific evidence a prima facie case for each essential element of their claims. See Tex. Civ. Prac. & Rem. Code § 27.005(c).”
That would be appealable by the plaintiffs if granted (final judgment of dismissal for the defendants) or by Texas Right to Life from denial (interlocutory appeal). The merits of the constitutional challenge would not be directly resolved on appeal, however, at best the appellate ruling would address whether there was a “prima facie” case, and whether therefore the litigation should have gone forward in the trial court.
NO STANDING & JUSTICIABILITY
Additionally, there is a jurisdictional challenge that could also result in a dismissal order, followed by an appeal by the abortion plaintiffs in which they can argue the merit, but won’t necessarily get a ruling on them because the core appellate issue would be whether the trial court had jurisdiction or not.
In any event, the merits are very dubious for the Plaintiffs who rely solely on the Texas constitution. There are some privacy protections there but the SCOTX is not going to invent a state constitutional right to abortion to do abortion clinics the favor. Are you kidding?
The attorney-plaintiff claiming that SB8 interferes with the attorney-client relationship (and ability to give candid advice to abortion-minded pregnant clients) may have a stronger argument, at least regading voidness for vagueness of the aiding or abetting part of SB8. Which raises the possibility that not all of the 14 cases (which have NOT been formally consolidated into a single a cause number) will be disposed of in like fashion.
And the other problem is that the Attorney General didn’t show up to defend SB8. Nor apparently anyone else for the State. Perhaps that will happen on appeal, but who knows? It seems an odd notion for an appellate court to strike down a statute (or affirm such a ruling) and the state not being present to argue againt it. At the minimum, it would seem, they would have to call for the opinion of the Solicitor General.
Caveat: This Kibitzer hasn’t watched the whole eight hours or so of proceedings.