Dr. Braid Sues S.B. 8 Plaintiffs as Interpleader Defendants in Illinois Federal Court

Who had statutory interpleader on their S.B. 8 bingo card?

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Dr. Alan Braid of San Antonio performed an abortion in violation of S.B. 8. He was sued by plaintiffs in Arkansas and Illinois. Later, an anti-abortion activist from Texas intervened in the Arkansas suit.

Now, Dr. Braid sued the Arkansas, Illinois, and Texas defendants in Illinois federal court. The suit is premised on statutory interpleader. Please raise your hand if you had statutory interpleader on your S.B. 8 bingo card.

Here is a brief overview of this CivPro chestnut.

First, 28 U.S.C. § 1335 only requires minimal diversity and $500 in damages. It provides, in part:

"The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person . . . having in his . . . custody or possession money or property of the value of $500 or more . . . if . . . two or more adverse claimants, of diverse citizenship . . . are claiming or may claim to be entitled to such money or property…."

Second, 28 U.S.C. § 1397 permits venue where any of the claimants reside:

Any civil action of interpleader or in the nature of interpleader under section 1335 of this title may be brought in the judicial district in which one or more of the claimants reside.

Here, one of the interpleader defendants is in Illinois. Thus, Illinois federal district court is a proper venue.

Third, 28 U.S.C. § 2361 allows for nationwide service of process:

In any civil action of interpleader or in the nature of interpleader under section 1335 of this title, a district court may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action until further order of the court.

The usual rules of personal jurisdiction are not relevant here. It does not matter that the Arkansas and Texas defendants have no connection to the Illinois federal forum.

Moreover Section 2361 permits the district court to enter injunctions, presumably against a state law:

Such district court shall hear and determine the case, and may discharge the plaintiff from further liability, make the injunction permanent, and make all appropriate orders to enforce its judgment.

Fourth, FRCP Rule 22 lays out the process for statutory interpleader:

(1) By a Plaintiff. Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though:

(A) the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; or

(B) the plaintiff denies liability in whole or in part to any or all of the claimants.

(2) By a Defendant. A defendant exposed to similar liability may seek interpleader through a crossclaim or counterclaim.

S.B. 8 permits damages $10,000 and up. But only one plaintiff can secure those damages. There is, in effect, a race to the courthouse. The first damages award precludes other plaintiffs from recovering against Braid for the single abortion. Braid argues that this potential judgment forms the basis for statutory interpleader jurisdiction:

The Court has jurisdiction because Dr. Braid brings this Complaint for Interpleader and Declaratory Judgment pursuant to 28 U.S.C. §§ 1335, 1397, and 2361, with respect to the parties' competing claims to the $10,000 minimum penalty sought in Interpleader Defendants' respective complaints filed pursuant to SB8, Tex. Health & Safety Code § 171.208(a).

I need to research this topic more. I am not certain that fighting over a potential court judgment is consistent with the traditional understanding of interpleader. The statute refers to money in the party's "custody or possession." No one has possession of that money until there is a final judgment. If the statute is unconstitutional in this context, the plaintiffs are entitled to $0. Moreover, given the unique design of S.B. 8, every American is a potential plaintiff. Thus, under Braid's theory of interpleader, any American could be subject to suit.

Finally, even if this suit is successful, the judgment would only run between Dr. Braid and the defendants. It would not preclude anyone else from bringing suit. Indeed, declaring S.B. 8 as "unconstitutional" is difficult in light of its massive severability clause. This hydra cannot be stopped.

Update: Howard Wasserman explains why the interpleader suit does not work:

Teddy Rave (Texas) floated the impleader idea on the Civ Pro Listserv and it generated some discussion. The better view, I believe, is that it does not work. A potential judgment in an ongoing litigation is generally not the type of res that can be the basis for an impleader--otherwise, anyone facing a state-court suit for breach of contract and liquidated damages would file an interpleader action over the liquidated damages as a res, creating a federal forum. The res has not come into existence. Moreover, there is no definite res because there is no definitive judgment. Braid deposited $ 10,000 with the court, but that is the minimum damages, not the settled res. The three do not have competing claims on a single pot of money. Rather, all have state-law claims against him and are in a race to judgment, with the first entitled to the judgment and the others out of luck. I also believe Colorado River abstention may kick-in, with federal courts denying this attempt to create parallel federal litigation to an ongoing state case involving the same issues.

NEXT: Making Sense of the Relists in Arlene's Flowers, Dignity Health, and Roman Catholic Diocese of Albany

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  1. "This hydra cannot be stopped."

    I've never understood this argument, which seems to go way too far. Once there is one case setting a precedent against the statute's constitutionality, that case will be cited in the next case. Then those two cases will be cited as precedent in the third and fourth (and fifth, etc.) cases. Eventually, courts will start issuing sanctions for frivolous pleadings. Much like sovereign citizen challenges to the tax code are tossed, plaintiffs invoking SB8 will be tossed too.

    Maybe the hydra can't be stopped today or tomorrow. But it won't take long.

    1. If Blackman turns out to be right that this sort of legislation can be enacted to circumvent Constitutional rights, then we all may as well start deciding what country we're going to belong to, because it won't be the USA anymore.

      I maintain that SB 8 is truly quite simple: Texas can't allow other people to penalize the exercise of Constitutional rights because Texas itself doesn't have the authority to do so. If Texas can't legally do it, they sure AF can't grant such authority to someone else.

      1. Texas can’t allow other people to penalize the exercise of Constitutional rights because Texas itself doesn’t have the authority to do so. If Texas can’t legally do it, they sure AF can’t grant such authority to someone else.

        Precisely the argument that people cannot delegate to a government the power to arrest, imprison, fine, or kill people; or tax them, regulate them, etc. No one has the authority to tax their neighbors, or regulate how they build their house, or make up laws to control their behavior; how can they possibly delegate those same non-existent powers to any government?

        1. You have that completely backwards.

          Try again.

          1. No. You argue that Texas has the power, and cannot delegate it to the people. Statists like to pay lip service to "We the people" and say that States derive their power from We The People;that We The People have delegated our powers to the State. But We The People do not have the powers that statists like you claim have been delegated to States. You claim that Texas does not have the power it claims to delegate by means of SB8. How is that different from the argument that We The People cannot delegate to States the power to tax, imprison, kill, and regulate that States claim to have derived from We The People?

            1. And please, do come back with a stronger rebuttal than "you have it backwards". Use the power of language to show what I have backwards. Quote my words, show which are in error, where the logic switches into reverse.

              If you actually mean not that my logic is backwards, but that only States have power, and We The People have only that power delegated to us by States, then say so in plain English. Don't hide your Statism behind mealy-mouthed nothings like "you are backwards". Be proud of hating individuals, of liking dictators, of wanting to be a dictator. And if that is your meaning, then fuck off, slaver.

              But if that is not your meaning, if you actually have some expressible complaint about my words and logic, then please, by all means, use a few of the many possible words in the English language to fully express those faults of mine -- or at least a few more than the weak tea you have shown yourself capable of so far.

              1. "Be proud of hating individuals, of liking dictators, of wanting to be a dictator. And if that is your meaning, then fuck off, slaver."

                What in the actual fuck is wrong with you?

              2. Because it doesn't say that government derives its just powers from the powers of the people; rather, from the consent of the people. So long as the people consent -- which they do through regular elections -- the government has whatever powers the people consent to give it. Even if no individual person has the power itself. Governmental authority flows from the people's consent, not from the people's power. And if the people think the government has taken too much power, they can withhold consent by electing a new government.

                In this country, we have a Constitution that limits how much power the government has. But your constitutional rights come from the Constitution, not from some free-floating natural right.

                1. "But your constitutional rights come from the Constitution, not from some free-floating natural right."

                  This is incorrect.

                  When someone says "Constitutional rights," the proper understanding of the phrase is "a natural right which the government has specifically been prohibited from taking away or infringing upon." The Constitution itself is not the source granting those rights.

                  For example, Amendment 15 states in part:

                  "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude--"

                  Note that it doesn't say "Citizens of the United States shall have the right to vote." It presumes the right already exists, because it is a natural right of the governed, and instead restricts the Government from taking it away on account of race, color, or previous condition of servitude.

                2. You, in perfect ignorance:

                  But your constitutional rights come from the Constitution, not from some free-floating natural right.

                  Ninth Amendment to the United States Constitution

                  The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

                  I don't if those hose "other rights" are "free-floating", but they sure don't "come from the Constitution".

                  1. Jason, and Gandydancer, suppose the First Amendment were to be repealed. is it your position that even in the absence of the First Amendment, free speech would still be a legal right the courts would have to enforce? Because if so, I'd like to know where that right comes from and what's the basis for claiming it exists.

                    I don't know if either or both of you consider yourselves to be libertarians, but I've had this conversation multiple times with libertarians over the years. The claim is made, with very little support, that people have all kinds of natural rights, but I've never gotten a satisfactory answer to where those rights come from. If you say that you have natural rights, and I respond, "Says who?", what's your answer?

                    As far as the Ninth Amendment, yes, some constitutional rights are unenumerated, and it was left to later generations to figure it out. But the Ninth Amendment is itself in the Constitution, so same question as I posed above: If the Ninth Amendment were to be repealed, would all those unenumerated rights disappear? And if not, what's your foundational basis for claiming that they even exist?

                    1. As those opposed to it at the time argued, the whole Bill of Rights was unnecessary in the context of a Constitution that supposedly gave the Federal Government only enumerated powers. The England had no Constitution did not mean that the Colonists had no rights as Englishmen, and simply as men, which they retained in full after declaring Independence.

                      I can't possibly attempt to educate you about this from scratch here, and anyway find it difficult to believe that you are truly as uninformed about this as your question would seem to imply.

                    2. The Federal government has enumerated powers, but the states don't, so that argument only applies with respect to rights violations by the feds. It gives you no protections against rights violations by state or local governments.

                      And you've made an assertion without backing it up. Where did "rights as Englishmen" come from? Where did rights "simply as men" come from? If rights exist, they must have originated somewhere. From God? From Santa Claus? From the Easter Bunny? Where? Sorry, but if you're going to claim that something exists -- whether it's rights, or the keyboard I'm banging out this comment on -- you really do have to go back to first principles and demonstrate a basis for its existence. They keyboard is easy; all I have to do is pick it up and say "Here it is." Rights are a bit more complicated than that.

                      So, suppose you were talking to someone who had never been exposed to the concept of rights and were hearing about them for the first time. He wants to know the fundamental basis for their existence. What do you tell him?

                    3. And where I think you're ultimately going to end up -- assuming you don't invoke God or some such other foolishness -- is that over the years a consensus built up that certain things should be rights. Which is just another way of saying what I already did: Rights are determined by the consent of the governed.

                    4. First things first, Before following you down your preferred rabbit hole I want to know if you acknowledge that Cavanaugh's claim that "your constitutional rights come from the Constitution" is proven incorrect.

                    5. I think that in this context, the Constitution is a contract, and the citizens obtained some rights by contract that they did not have previously. I do not rule out the possibility that there may have been some rights that did pre-date the Constitution, which had previously been created by the consensus I referenced earlier -- the consent of the governed. So whether I agree with Cavanaugh is not a yes or no question. I do disagree with his 15th Amendment example; I think the right to vote makes an appearance in the Constitution earlier than that.

                      And it's not really a rabbit hole to ask you to justify your claims. You say rights exist; I'm entitled to know where they come from. You can't just make broad, sweeping assumptions without having to tell us the basis for those assumptions.

                    6. If Gandy wasn't an illiterate dipshit, he'd have noticed that the quote he's attributing to my position was actually your response being cited for reference.

                    7. I saw that but decided not to make an issue of it. I'm more interested in whether he's going to tell us where he thinks rights come from.

                    8. " people have all kinds of natural rights,"
                      K_2,
                      That claim is not just the province of libertarians. It is the premise for the "declaration of human rights."
                      But at least in the context of the 18th century, those rights were endowed by the Creator.

                    9. "Endowed by the Creator" was indeed the official position, though I gather that some of those saying so didn't actually agree on what that meant.

                      But in any case they DID agree that those rights were not obtained by contract through the process of ratifying the US Constitution.

                      To answer Kry's question, as a non-believer in any Creator, my right to free speech or to bear arms or whatever is a straightforward consequence of the fact that I am owned by no one and free to do what I will subject to the constraint that injury to others will earn and deserve consequences. The Constitution is just an arrangement that more or less guides interactions over a certain span of my environment, but I merely tolerate it, partly due to constraints, and my toleration depends on it remaining tolerable.

                    10. Gandydancer, that looks like another unsupported assertion to me. Does the right to control someone else's behavior only stem from owning that other person? Nope. Or at least if it does, you haven't proven it.

                      You're also hampered by the fact that as a matter of biological fact, humans form communities and engage in community governance. It's what we do. You could equally as well tell birds to stop flying. Humans are social animals who do better living in community, and living in community means that certain behaviors have to be suppressed for the good of the community. You can't both benefit from community living and also tell the community to stay out of your life; it so does not work that way.

                3. Nonsense. Governments are instituted among men to protect rights, not create them.

                  1. That doesn't tell us where rights come from.

                    1. K_2,
                      An object lesson, don't step between two players having a fight on the field. You're liable to get punched by at least one of them.

                    2. It does tell us one place they don't come from: Government.

                      Figuring out what the wrong answers are is an important endeavor. Maybe you'll stop insisting government is the source of rights one of these days, since we *know* that's wrong.

                    3. I've never said government is the source of all rights; it's the source of some rights.

              3. You had it wrong, and now you're fighting a strawman by pounding on the table.

                Your pride was wounded, and it made you argue like an abusive asshole. Learn to take the occasional L.

            2. "You argue that Texas has the power, and cannot delegate it to the people."

              I clearly stated that Texas does NOT have the authority to punish people for exercising Constitutional rights, and therefore cannot grant such authority to anyone else because it isn't theirs to give.

              "If Texas can’t legally do it, they sure AF can’t grant such authority to someone else."

              That's what I wrote. You misread my remark.

              "How is that different from the argument that We The People cannot delegate to States the power to tax, imprison, kill, and regulate that States claim to have derived from We The People?"

              Check the 10th Amendment. That argument is clearly wrong.

      2. I maintain that SB 8 is truly quite simple: Texas can’t allow other people to penalize the exercise of Constitutional rights because Texas itself doesn’t have the authority to do so.

        You can maintain all sorts of stupid shit, and regularly do, but no one is going to allow you to assume your way to any conclusions. SB8 specifically allows defendants to evade any liability so long as the Casey precedent remains unreversed and therefor SB8 doesn't penalize the exercise of any supposed Constitutional right. If Casey is reversed then the supposed Constitutional right was not one, and the SB8 violator, having been duly warned that TX had made post-heartbeat abortion illegal and unprotected by the Constitution against prosecution for his crime, can in fact be prosecuted and convicted, subject to the 6 yr statute of limitations.

        1. "SB8 specifically allows defendants to evade any liability so long as the Casey precedent remains unreversed and therefor SB8 doesn’t penalize the exercise of any supposed Constitutional right."

          Has anyone been criminally prosecuted for it? Nope. Have civil suits already been filed? Yep. Do those suits carry the risk of up to $10k in damages? Yep. Is that a form of punishing someone? Yep.

          How ironic that you ignorantly assumed I was only referring to criminal prosecution when I referred to someone being 'punished.'

          How's your foot taste now?

          1. Penalize* not punish.

            I was too eager to finish my response and get around to muting you. Adios.

            1. Ah, the ostrich defense. If you don't SEE me demolishing all the stupid things you say then it's not really happening, right? Ignorance is bliss?

              1. The full, correct quote is more appropriate here:
                "Where ignorance is bliss, 'tis folly to be wise."

                1. But what I've noted is that his remaining ignorant of what I say (or, as it has turned out is true, merely pretending that he will -- see his accusation that I am "an illiterate dipshit" after indicating TWICE that I am blocked) is not a plausible basis for bliss. "If A then B" is irrelevant, not appropriate, if A is false.

            2. .Penalize* not punish.

              LOL! A should-be-embarrassing correction to a post complaining (in lieu of actual refutation of my point) that I wrote "prosecuted" rather than "sued".

              Even given your level of self-unawareness, did you miss that?

          2. Since it's your foot in your mouth I don't taste it at all.

            If you reread my post, with minimal attention to what I actually said this time, you will find I said nothing at all about CRIMINAL punishment.

            1. ...or to be more exact, the "private prosecutors" who can bring suit are technically only plaintiffs, though the statutory damages are certainly intended as punishment and deterrent. But your focus on that minor inaccuracy in my wording while utterly failing to refute my actual point is telling.

            2. "...you will find I said nothing at all about CRIMINAL punishment."

              Actually that's not at all what I found. Here's what you said, since you seem to have some kind of cognitive problem:

              "illegal and unprotected by the Constitution against prosecution for his crime, can in fact be prosecuted and convicted, subject to the 6 yr statute of limitations."

              Illegal.
              Crime.
              Prosecuted.
              Convicted.

              Maybe you should pay more attention to the dumb shit you write, which you claim not to have written.

              That was absolutely worth un-muting you for a moment, LOL.

              1. This from the guy who just apologized:

                ..Penalize* not punish.

                I was too eager to finish my response and get around to muting you. Adios.

                And, of course, there is no reason to think you're not lying when you claim to have "un-mut[ed me] for a moment", rather than that just being a second lie after "Adios".

                Your grotesque unawareness of what an embarrassment you are to yourself is quite remarkable.

                And, still no refutation of my observation that SB8 does not in fact "punish people for exercising Constitutional rights"? LOL!

  2. Moreover Section 2361 permits the district court to enter injunctions, presumably against a state law:

    Such district court shall hear and determine the case, and may discharge the plaintiff from further liability, make the injunction permanent, and make all appropriate orders to enforce its judgment

    .

    Nope. Injunctions cannot be issued "against a state law", only against execution of the law by specified defendants or classes of defendants. You admit something like this later ("...even if this suit is successful, the judgment would only run between Dr. Braid and the defendants. It would not preclude anyone else from bringing suit."), so you ought to have written more carefully, earlier.

    1. In product liability class actions, once there are actual injured plaintiffs with standing, federal courts routinely enjoin possible future plaintiffs who have not yet been injured by the product. Outcomes are routinely made binding on all possible future plaintiffs.

      What makes this different so far as rules of atanding and permissable scope of injunctions is concerned?

      1. This is not a product liability action. This is a statutory interpleader action, and an improper one even as against the two defendants.

        I'm not clear on how the class of producers of allegedly defective products is defined and certified with no notice to them, but what you want done here is to enjoin the entire population of the US from bringing suit against Dr. Braid. That's a lot of heavy lifting for an unprecedented theory about a suit that will become moot as soon as (if EV is right about only one 10k+ being available) the TX courts identify the one individual who can sue Braid.

  3. S.B. 8 permits damages $10,000 and up. But only one plaintiff can secure those damages. There is, in effect, a race to the courthouse. The first damages award precludes other plaintiffs from recovering against Braid for the single abortion.

    This seems reasonable, but I haven't located this provision in SB8. https://legiscan.com/TX/text/SB8/id/2395961 Help?

    If not, then there is no common pot of money being squabbled over, unless Braid's funds are insufficient to pay both judgments.

    1. It's in Section 171.207(c): "a court may not award relief under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion"

      1. Yeah, so what happens if relief is awarded to additional plaintiffs before the first one to get an award is paid? Does the defendant have to pay those additional plaintiffs as well? The text of the law doesn’t seem to preclude multiple actions going on at the same time.

        Also interesting, the (a)(3) violation of “intend[ing] to engage in the conduct” violation is left out of that limitation. So, in theory, limitless plaintiffs could sue and be awarded $10,000+ if they could prove that someone intended to perform or aid or abet a prohibited abortion?

        Even leaving aside the big picture issue, there are numerous troubling aspects of this law buried in its various provision. This law is trash and those who drafted and voted for it should be ashamed of themselves.

          1. Well... the US Constitution is in numerous parts trashily drafted, so jumping from "trashily drafted" to "they should be ashamed of themselves" is unwarranted, IMHO. I don't think that's your real reason for depreciating it.

            There are all sorts of precedent for curing drafting errors, including amendment in this case inasmuch as effective suits cannot result until/unless Casey is overturned, so there is plenty of time to deal with any problems such as the ones you point out. I'm sure a way can be found the prevent a losing defendant under SB8 from having to pay multiple damages in the relatively unlikely event that multiple judgments are entered against him. For one thing TX courts can take notice of who got to court first.

            1. I wasn’t referring to drafting errors when I said the law is trash. I was referring to various provisions of it and what they intend or purport to do. Leaving aside the big picture issue of the propriety or constitutionality of prohibiting pre-viability abortions (which I’m not weighing in on), this law is troubling for numerous reasons.

              And yes, that is why I’m deprecating the law. It’s trash.

              To be clear on the specific provision I commented on before, I don’t think leaving the (a)(3) violation out of the multiple award limitation was a drafting error. It might make sense to treat intent differently in this context. But making intent a violation to begin with is troubling.

              1. Any indeterminacy as to "what happens if relief is awarded to additional plaintiffs before the first one to get an award is paid?" looks like a drafting error to me, The obvious intent of the provision Jgalt identified is that the abortionist (etc.) only have to pay one judgment, and I don't expect curing that ambiguity will be a problem. The queue of actions allowed by the TX courts to proceed may simply be limited to one with the rest rendered moot once relief in awarded in a more senior case.

                I note that Jgalt misidentified the section limiting the number of awards to one. It's actually Section 171.208[CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION](c), not 171.207[LIMITATIONS ON PUBLIC ENFORCEMENT](c).

                And, actually, now that I look at it, it appears that your concern about damages being awarded for intent is... somewhat ... unfounded. 171.208(a) does indeed say "...may bring a civil action against any person who:...(3) intends to engage in the conduct described by Subdivision (1) or (2)." But 171.208(b) says

                If a claimant prevails in an action brought under this
                section, the court shall award:
                (1) injunctive relief...;
                (2) statutory damages in an amount of not less than
                $10,000 for each abortion that the defendant performed or induced
                in violation of this subchapter, and for each abortion performed or
                induced...; and
                (3) costs and attorney's fees.

                So, the $10,000 penalty only applies to performed abortions. "Intent" violations can only result in injunctive relief and costs.

                Now, in crim you can certainly be charged for intent, though acts toward are required, afaik.

                But I don't think suing for duplicate-to-already-awarded injunctive relief will be allowed. Looks like a curable drafting ambiguity to me.

                1. "court-curable" that is, not requiring emendation to go into effect,

                  What other provisions are you objecting to?

                  I'm not sure why they needed the private-prosecutor approach. So long as an un-reversed Casey is a defense no prosecution can succeed if pursued by a DA, either. SCOTUS can't take laws off the books and TX already has anti-abortion laws on the books, so if SCOTUS reverses Casey I see no barrier to enforcing any of those laws for violations within the statute of limitations as of the date Casey falls, or at least as of the date TX can squelch any outstanding injunctions on the basis of such a reversal... Well, so there's THAT delay. If not successfully enjoined SB8 prosecutions could begin immediately.

                  1. ...errr, suits, not prosecutions.

  4. 28 USC 1335 provides:

    (a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader... if

    (1) Two or more adverse claimants, of diverse citizenship... are claiming or may claim to be entitled to such money or property... if (2) the plaintiff has deposited such money or property... into the registry of the court, there to abide the judgment of the court, or has given bond payable to the clerk of the court in such amount and with such surety as the court or judge may deem proper"

    Has Braid done this, and in what amount?This suit seems of course entirely speculative and premature.

    1. ...aand it will be mooted if the IL plaintiff's suit is thrown out of court, either because he lost the race to court or for other deficiencies in his pleading, of which there are at least a few. [Such as not accurately stating Dr. Braids violation of law ("8 weeks" instead of post-heartbeat, though this might be amendable) or actually asking for damages (so what is the money supposedly being claimed by two parties?).]

      1. The statute expressly provides that a prevailing plaintiff is entitled to an award of $10,000 (Sec. 171.208(b)(2)) and there's no requirement to show actual damages, so I'm not sure it's a pleading defect to not expressly ask for damages in the complaint -- it's not an element of the claim and it's arguably redundant.

        1. It's a minimum of $10k, not $10k. The TN plaintiff is asking for $100k, iirc.

          This complaint http://cdn.cnn.com/cnn/2021/images/09/20/fg.v.abriad.roev.wade.defense_7733a4f3%5B2%5D.pdf (the IL one, as it happens) just screams "pretextual" and "no real controversy between the parties" to me.

  5. I can’t claim familiarity with the interpleader rules.

    But now that there are state-law plaintiffs actually filing SB8 suits, Article III standing is unquestionably met for the people filing the suits. People actually in the process of enforcing the law are clearly causing an injury in fact.

    1. So you can maybe enjoin those two. Two pro-abortion individuals, as it happens. Leaves 330M+ to go.

    2. Article III standing does not apply to state courts. But Texas follows rules similar to federal standing requirements based on separation of powers and open courts provisions of the Texas Constitution. Permitting lawsuits in the absence of an injury in fact runs afoul of those provisions.

  6. In federal product liability class actions. judicially enforced settlements nearly always apply to all possible future plaintiffs, even those not yet injured by the product.

    If federal judges have the constitutional power to issue orders binding on all prospective future plaintiffs once actually injured plaintiffs with standing appear in court in product liability cases, why can’t they do so here?

    1. You posed this twice?

      Answer above.

  7. We really badly need a Supreme Court Justice to write in an opinion, joined by at least four other Justices, something like… “When the process becomes or intends to be the punishment, then due process rights are necessarily violated and providing for the process is, in itself, unconstitutional.

    There are plenty of other examples of the process being the punishment, but this law is a pretty good one.

    1. Do you have actual standards for when this is happening, or is it just when you don't like it happening?

      1. We have doctrines or laws that provide for immunity from process in some situations: abuse of process, qualified immunity, and anti-SLAPP. But procedurally, the Supreme Court is going to have a hard time ordering state courts to provide early termination of losing cases. Has there ever been a case holding that summary judgment is a constitutional right?

      2. Of course I have standards for when I think it's happening, how else would I determine for my own purposes when I think it's happening? Whether I like something is a separate matter. There's plenty that I don't like which I nevertheless don't assume is improper or evil or dumb or unconstitutional or whatever the context may have.

        Without getting too far into the weeds, for me some of the questions are: Does the process itself have substantial effects similar to the would-be punishments (e.g., does it cost them substantial amounts of money, does it restrict their physical freedom)? Does the threat of the process itself substantially discourage the conduct meant to be discouraged? To what extent are certain aspects of the process essential for the process to happen at all rather than just ways of making the process more efficient or convenient or easier (from a success/failure standpoint) for the government?

        Others surely differ when it comes to when it happens or to what degree it's acceptable. That's fine. My dial is turned about as far as it can go toward the limit-gov't-power-to-punish/encumber-indiviuals-through-the-process side. But I wasn't suggesting in the previous post that my standards or my dial setting should control. That said, I do think we've accepted way too much when it comes to punishing people through process. Pre-trial detention, e.g., should be allowed far less frequently than it is and when it is the government should have to make whole pre-trail detainees who aren't convicted (through both statutory per-day damages and the opportunity to establish greater damages).

        1. Not disagreeing with all of that, but it's a real sea-change.

          Lots of these 1/6 folks should qualify for substantial payouts, eh?

          But, hell, we can't even get Ashli Babbitt's murderer prosecuted.

  8. SB8 says that an award can’t be made if a defendant has already paid statutory damages to a previous claimant.

    But what if the defendant hasn’t paid yet? Can multiple claimants file multiple lawsuits before the first one completes? Can they time things so that multiple awards occur before the first one is paid?

  9. Dr. Braid´s complaint looks well-pleaded to me.

    1. Ipse dixit, the man says.

      It's trash, for all the reasons EV notes and more.

      If you don't think so at least try to refute his points, just for a start.

      1. When has Professor Volokh attempted to address the constitutionality vel non of SB8 on the merits? Please be specific.

  10. [D]eclaring S.B. 8 as "unconstitutional" is difficult in light of its massive severability clause.

    Why the scare quotes around unconstitutional? Roe and Casey are binding on all courts and are dispositive of the invalidity of the ¨fetal heartbeat¨ provisions -- without which the statutory scheme collapses like a house of cards.

    1. Because SB8 contains Sec. 171.209. CIVIL LIABILITY: UNDUE BURDEN DEFENSE it complies with Casey, afaik, so scare quotes are put around "unconstitutional" b/c it isn't.

      Your assertion, "Roe and Casey are binding on all courts and are dispositive of the invalidity of the 'fetal heartbeat' provisions — without which the statutory scheme collapses like a house of cards." is just arm-weaving declamation.

      And, btw, why the scare quotes around fetal heartbeat?

      1. Because SB8´s prohibitions take effect before there is a fetus, andd before the embryo has a heart.

  11. Long shot, but if ND Illinois elects to (courteously) abstain and speedily grant a COA, that would put the civil/criminal nature of this idiotic law squarely in the sights of the Seventh Circuit.

    Mr. D.

    1. What would be the basis for abstention?

      1. By that point, there might be a decision on the merits in one or more state court proceedings. Or the proceedings might be ongoing. Or they might have removed under CAFA after 1.8 million Americans file suit at the prompting of Fox News. Or someone on a houseboat in the Gulf might file a claim in Admiralty. Or someone at the Texas State Fair might file a claim in Piepowder. At this point, who knows.

        Mr. D.

  12. It seems we have at least one judge who understands the Supremacy Clause. https://www.statesman.com/story/news/2021/10/06/federal-judge-blocks-texas-restrictive-abortion-law/6030166001/

    Will any of the conspirators now acknowledge the pendency of the DOJ action in United States v.Texas?

    1. What does that last sentence even mean?

      Your judge seems quite clueless. TX isn't preventing anyone from obtaining an abortion. SB8 explicitly contains a Casey-compliant "undue burden" provision. Any abortionist who is convinced that Casey will not be overturned is free to go ahead and abort and, if he is right, he will be safe from paying any award.

      1. Texas isn´t preventing anyone from obtaining an abortion??

        Is that as true as everything else you have said?

        The undue burden language of Casey applies to pre-viability regulations of abortion, not to pre-viability bans. SB8 is the latter. The in terrorem effect of potential damages liability has prevented and continues to prevent abortions in Texas.

      2. The attempt to proscribe reliance on judicial decisions in effect at the time of the abortion, but subsequently reversed, is of dubious constitutionality. A basic requirement of due process is that a statute give fair warning of what conduct is prohibited. Every court which has considered the constitutional merits of a six week ban on abortion has ruled in favor of the provider. To undo the law retroactively offends procedural and substantive due process.

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