By David S. Cohen*
Texas’s Senate Bill 8 (SB8) is, to use a technical legal word, bonkers. And I’m not even talking about the substance of the bill, which is a clearly unconstitutional ban on abortions at six weeks of pregnancy, which is long before viability. Rather, the law is bonkers because of all of the procedural irregularities built into it. Consider the following abnormalities:
- Civil enforcement: Unlike every other abortion regulation or ban, this one is enforced not by the state, but rather through private party civil lawsuits.
- Impossible to enjoin (so far): Any possible person can bring a lawsuit, which thus far has made the law impossible to enjoin completely. While injunctions against specific potential plaintiffs are possible, this doesn’t offer abortion providers much assurance, as they can still be sued by anyone else.
- No injury required: Unlike every other civil lawsuit, these civil lawsuits do not require the plaintiff to even plead they were injured or have any connection whatsoever to the abortion. In other words, literally anyone can sue.
- No connection with Texas needed: The plaintiff suing under this law doesn’t even need to be connected in any way to Texas. The only nexus with the state required by the law is that the doctor performing the abortion be licensed in Texas.
- Venue where plaintiff lives: If the plaintiff does live in Texas, the venue for the lawsuit could be in the county where the plaintiff lives, even if the abortion took place hundreds of miles away. Texas has 254 counties, all of which are now possible venues.
- Aiding and abetting: The law allows for lawsuits against the doctor and anyone who aids and abets the abortion. These terms have been left intentionally vague, raising the possibility of taxi drivers and out-of-state donors being possibly liable under the law.
- No recovery of fees: SB8 does not allow the defendant to recover attorneys’ fees or costs if the lawsuit is frivolous or abusive.
- Minimum $10,000 judgment: If someone is found to violate SB8, they are on the hook for “not less than $10,000 for each abortion” that violates the law even though the plaintiff has suffered no injury.
Each of these aspects of the Texas law has attracted much attention in the past month. Predictably, the crazy law has been met with even crazier complaints now that a doctor has admitted to violating SB8.
But one part of SB8 has received little attention, even though it is one of the most pernicious aspects of the law and was a key part of Texas’s defense to the United States’ SB8 lawsuit at the October 1 preliminary injunction hearing. Tucked into the section of the law that addresses defenses to a lawsuit under SB8 is this language:
Section 171.208(e)(3): “Notwithstanding any other law, the following are not a defense to an action brought under this section: . . .
(3) a defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this chapter . . . .”
In plain English, this provision means that if SB8 is enjoined by a court—in any form of injunction, whether preliminary or final—an abortion provider that relies on the injunction would put itself at risk because if that injunction is overturned later in the same court (in the context of a preliminary injunction not being made final) or eventually on appeal, all abortions performed while the injunction was in effect could be subject to liability. In other words, abortions that were performed pursuant to a lawful court order could later be deemed unlawful.
If courts were ever to apply this provision, abortion providers would never feel safe providing abortions in Texas. Imagine a scenario in which a trial court enjoins the law with respect to all possible plaintiffs (something that, as mentioned above, has thus far proven impossible) because it violates Roe v. Wade. That injunction could be overturned on appeal by the intermediate appellate court or the supreme court (state or federal, depending on the appeals path). So, while the appeals are pending, abortion providers are still risking liability.
But even if the injunction is affirmed by either the Texas Supreme Court or the U.S. Supreme Court, abortion providers are still at risk. The substantive basis for any injunction would be the Court’s decisions in Roe and Planned Parenthood v. Casey and their prohibition of pre-viability abortion bans. The problem is that those precedents are under direct attack and might be overruled sometime in the near future (including possibly in this term’s case of Dobbs v. Jackson Women’s Health Organization). If these precedents are overruled and abortion is now freely prohibited or regulated by the states, someone could go back to court to re-open the SB8 injunction. Once re-opened, it would be rescinded because the precedent that blocked it is no longer good law. Now, all of the abortions performed during the injunction that was subsequently reversed might be subject to SB8 lawsuits. And with SB8’s six-year statute of limitations, it doesn’t matter if Roe/Casey aren’t immediately overruled. Even if the Supreme Court takes its time doing so, abortion providers could be on the hook for a lot of abortions.
One might think that it violates basic constitutional principles to punish someone for conduct performed pursuant to an injunction. Indeed, due process fairness would seem to block these lawsuits, as would the Supremacy Clause of the U.S. Constitution if it were a federal court injunction. However, precedent on this issue is murky. In 1920, the Court wrote that initial injunctive relief, even if overturned, “restrain[ed] enforcement of penalties accrued pendente lite [during litigation].” That might seem to answer the question, but that opinion was not an exemplar of clarity. As a result, in the 1982 case Edgar v. MITE Corp., Justices disagreed about this position. While the majority in Edgar did not reach this issue, Justices Marshall and Brennan, writing in dissent, opined that an injunction offers “permanent protection from penalties for violations of the statute that occurred during the period the injunction was in effect,” while Justice Stevens wrote in his concurrence that federal courts might lack the power to give this permanent protection.
Scholars who have looked at this issue recognize the problem this confusion presents. Professor Vikram David Amar wrote in 2004 that Justice Stevens’ position is “quite scary” and could result in a Catch-22 for plaintiffs: “Give up an activity that they believe (and a district court agrees) is constitutionally protected, or risk criminal prosecution down the road if the district court is reversed.” Under a “very broad” reading of Stevens’ logic in Edgar, Amar then cautioned, this Catch-22 could persist even after the Supreme Court affirmed an injunction, as the Court could later overrule its prior decision. A 2016 law review article by Professor Patrick Gillen also notes the risk from this unclear precedent. He recognizes that while we may think of a preliminary injunction as a “shield” from future sanctions, “the Court has yet to provide an answer.” Although Professor Gillen believes preliminary relief should serve as a defense to future liability, these Justices’ pronouncements on the issue could possibly mean that “preliminary relief is not a trustworthy shield. Quite the contrary, it [might be] akin to a Sword of Damocles poised over the heads of litigants prevailing at the preliminary injunction stage that threatens their doom if the suit fails in the end.”
This is exactly the situation abortion providers in Texas might find themselves in if they win injunctive relief in state or federal court. Put yourself in their lawyers’ shoes: if you won an injunction, would you advise your clients to start performing abortions with the risk of substantial liability hanging over their head if the injunction is reversed any time in the next six years? That would be a hard enough question without the explicit language in SB8. But with the clause highlighted here, it would likely be very risky. And that’s just one more way in which SB8 is, to go back to the technical language I used to start this post, bonkers.
* David S. Cohen is a professor of law at Drexel University’s Kline School of Law. He is the co-author of two books about abortion — Obstacle Course: The Everyday Struggle to Get an Abortion in America (California 2020, with Carole Joffe), and Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism (Oxford 2015, with Krysten Connon).