Texas State Court Rules SB 8 Enforcement Mechanism is Unconstitutional

The ruling is mostly based on the Texas state constitution and probably will not affect the federal case challenging SB 8, currently before the Supreme Court. But it makes some notable points, nonetheless.

Flag of Texas.

 

Today, Texas state trial Judge David Peeples issued a decision in Van Stean v. Texas Right to Life, holding that the controversial enforcement mechanism of the Texas anti-abortion law, SB 8, is unconstitutional. As with the SB 8 case currently before the federal Supreme Court, this state court ruling focuses on SB 8's unusual enforcement mechanism. It doesn't address the constitutionality of the abortion restriction itself.

SB 8 delegates enforcement authority exclusively to private litigants, who each stand to gain $10,000 or more in damages every time they prevail in a lawsuit against anyone who violates the law's provisions barring nearly all abortions that take place more than six weeks into a pregnancy. As I have explained in various previous posts on SB 8 (e.g. here and here), the purpose of this unusual structure is to evade judicial review by making it impossible for abortion providers to sue the state to block enforcement of the law.

In a state lawsuit challenging SB 8 brought by fourteen different abortion providers, Judge Peeples has ruled that SB 8's enforcement mechanism is unconstitutional for three reasons: it authorizes lawsuits by parties who do not have standing because they have not suffered any injury; it is  "an unconstitutional delegation of enforcement power to private parties;" and the $10,000 civil penalty qualifies as punishment without due process.  Judge Peeples decided the former two issues under the Texas state Constitution. But the due process ruling is under the Due Process Clause of the Fourteenth Amendment.

A notable part of today's ruling is the section (pp. 12-13) where Judge Peeples emphasizes that, if it is upheld, the SB 8 strategy for evading judicial review can be used to attack a wide range of other constitutional rights: "[I]f SB 8's civil procedures are constitutional, a new and creative series of statutes could appear year after year, to be enforced by eager ideological claimants, who could bring suit in their home counties… Pandora's Box has already been opened a bit, and time will tell."

He methodically describes how SB 8-like mechanisms can be turned against gun rights, free speech rights, and rights to religious liberty, like those relied on by people with religious objections to baking cakes for same-sex wedding celebrations:

SB 8 raises an obvious concern: if its civil procedures are constitutional for abortions, they will be constitutional for other targets. Other states (or future Texas Legislatures) might copy and paste them onto other substantive provisions to drive undesired activities out of business. In our polarized country, other states with different electorates and different priorities might decide to use these procedures to put other people out of business or to stamp out behavior they dislike intensely, including other areas of life covered by constitutional law….

State A could copy the procedures and replace the abortion provisions with language that forbids openly carrying guns, or with language requiring trigger locks on all guns…

State B might use the procedures to enforce discrimination laws against bakery owners who will not, as a matter of conscience, decorate a cake with a message that is offensive to them or that violates their religious beliefs…[citing the Masterpiece Cakeshop case]… To be effective, this statute would need to cover the bakery and its "aiders and abetters" (aka employees, suppliers, financial backers), who might quickly decide it is best to stop helping the bakery discriminate and thereby avoid these lawsuits….

The courts might eventually uphold the baker's right not to be compelled to speak a message he disagrees with, but he and others like him and his employees might be bankrupted in the meantime. The procedures could be used not only to put people out of business, but to attack a disputed area of constitutional law that a legislature passionately disagrees with, like the First Amendment. Statutes could adapt these procedures to single out climate change deniers, or those who utter "hate speech," or American History teachers who teach X or don't teach X. We are a diverse and creative people, and it seems naive to hope these procedures will be cabined voluntarily once they are upheld.

As Judge Peeples notes, SB 8 authorizes lawsuits not only against abortion providers, but also anyone who "aids or abets" them. If a similar law were used to target bakers, it could also encompass their employees, suppliers, and others. Conservatives who fear blue states might make theologically conservative bakers "bake that cake" have reason to fear the precedent SB 8 will set. And the same goes for people concerned about gun rights, free speech rights, and virtually any other constitutional right that might be targeted by either the left or the right.

The slippery slope threat of SB 8 has been outlined previously, most notably in an excellent Supreme Court amicus brief by the Firearms Policy Coalition, and by several justices in the Supreme Court oral argument. But Judge Peeples' analysis of this issue is particularly thorough, especially in emphasizing how the "aid or abet" provision of SB 8 makes things worse.

Today's ruling is merely a declaratory judgment limited to the parties. It does not issue an injunction against SB 8 lawsuits generally. Thus, it isn't binding on other potential SB 8 litigants. It also, of course, does not affect the federal case before the Supreme Court. Whereas the Texas case is primarily focused on whether SB 8 violates various requirements of the state constitution, the federal litigation about whether abortion providers or the federal government can challenge SB 8's constitutionality in federal court before a private party sues them. In addition, Judge Peeples' ruling is going to be appealed. We do not yet know what higher Texas courts will say on these issues.

Nonetheless,  the ruling makes some useful points that the federal Supreme Court justices would do well to take note of. In addition, it could well serve as a precedent that other Texas courts will follow in assessing SB 8 cases. The decision also outlines ways in which SB 8-like statutes can potentially be challenged under state constitutions, though the strength of such arguments is likely to vary from state to state, depending on their state constitutional jurisprudence.

Comments

[not guilty]

This declaratory judgment ruling cuts the heart out of the enforcement mechanism.

[KenveeB]

For one suit in one district court in Austin. Ilya’s belief aside, I doubt other judges outside of Austin are going to give it much credence.

[John F. Carr]

It is a consolidated lawsuit assembled from a dozen scattered lawsuits. The judge is certifying the partial judgment for immediate appeal.

[Pettifogger]

David Peeples is a highly respected judge. I have appeared before him and know many other lawyers who have done so. I am not aware of any criticism of him for partiality or otherwise. He is among the best.

[Formerly Known as Stash]

One of my first reactions was that state constitutions might create a barrier to this type of suit.
Pure “informer statutes” which allow private parties to sue on behalf of and collect a portion of penalties due the state, have a long history beginning in England, where they were eventually repealed due to abuse. (These were called “informer” statutes, not because the person suing was like CI, but because the suit was begun by filing an “information”–just as prosecutions not requiring indictment are begun with a “criminal information” today–hence they were “informers”–the person filing an information–just as “plaintiff” is the person filing a complaint).

This statute is similar, except that the penalty is paid wholly to the “informer” instead being shared with the state. This was designed to prevent an accusation of state action, but I think the judge’s view that this constitutes a delegation of the state’s power to prosecute individuals is correct. I think quite a few states would have constitutional provisions that would pose a similar barrier. That is, private citizens could not be recruited by the state to enforce the law when they lack any stake in the matter and are not in any way supervised by the state.

One interesting part of the law that I haven’t seen discussed much is that the legislature eliminated any sanction for filing a frivolous suit. There seems to be two possibilities: either the power to sanction for a frivolous suit remains in the courts, or this section violates the separation of powers. Generally courts are said to have inherent power to sanction for an abuse of the judicial process. So either courts can simply sanction a frivolous lawsuit independent of the law on sanctions made inapplicable by the legislation, or to the extent they cannot, that part of the law would be unconstitutional.

[Rossami]

Much as I like the outcome of the case, how is this decision consistent with the precedents that allow qui tam lawsuits? Why are they not equally preempted as delegations of state prosecutorial authority?

[Formerly Known as Stash]

The issue has already been litigated, albeit not in Texas. I know about this because qui tam lawsuits, in terms of being constitutional in the context of this type of doctrine, are different from both SB8 and traditional informer statutes, because: (a) the government maintains complete control over them (i.e. it can dismiss or intervene in them at will, must approve any settlement etc) and (b) the government receives the lion’s share of the award.
The key in terms of the “delegation” is the first point–there is no delegation because the gov retains control of the litigation and is the real party in interest. SB8 eschews this aspect, to avoid the ban being “government action” and thereby runs afoul of non-delegation.
A stark of example exists in my state, where one qui tam statute was deemed unconstitutional. That statute allowed suit where the AG, after notice failed to act. The state FCA clone, however, was constitutional, by reason of the points above. (I was on the amicus brief for the latter decision, which is how I know about this stuff).
So, qui tam suits, at least in the FCA area are safe. There were, in fact federal challenges on both standing and for violation of the “take care” clause (i.e. delegation), but these were rejected on essentially the same grounds I outline above, which meant victory in the state Supreme Court case.

[WPHDM]

BLIND JUSTICE OR JUDICIAL BLINDERS ?

Re: “private citizens could not be recruited by the state to enforce the law when they lack any stake in the matter and are not in any way supervised by the state.”

Every aspect of a civil lawsuit is supervised by judges and their staff. Lots of pertinent rules too: See here:
https://www.txcourts.gov/rules-forms/rules-standards/

Re: SB8 allows “persons” to sue & allowing persons to sue is bad

The fallacy on the standing issue is this: Most of the 29+ million Texans may only have statutory standing, but what about those that do have injury and an interest? The existence of this class of would-be plaintiffs should preclude facial invalidation of SB8. The fact that SB8 does not *require* injury on material interest in the matter of the unborn child and its induced demise doesn’t compel the conclusion that no SB8 will ever be able to demostrate such injury or interest. Utterly fallacious reasoning. Nor does the statute have to expressly articulate restrictions on standing/cause of action to the extent such restriction are grounded in the state constitution (which is a matter up to the SCOTX to prospect for in text, history, tradition and prior pronouncements, etc.). Not to mention that even trial courts have obligation to sua sponte make sure they possess jurisdiction.

CATEGORICAL PROSPECTIVE “DE-STANDING” WOULD ITSELF VIOLATE ACCESS TO COURTS AND RIGHT TO PETITION

Further, the matter of any particular litigant’s standing cannot be ascertained prospectively because neither the pre-enforcement judge, nor the abortionists, can anticipate who will sue, and what grounds of standing other than statutory they might possess or be able to claim.

What if the pregnant woman’s fiancé and partner in planned or unplanned concepetion (fetus father) has bought a house with money constituting separate prenuptial property, including baby room & crib and year worth of diapers, or has taken out life insurance on himself that’s payable to his heir under the intestacy laws, or a will made in response to the news of forthcoming partenthood? — No interest in the matter of an illegal abortion here? No deprivation?

And what about prospective adoptive parents that have already provided many months of money or in-kind support (or both) for the expectant mother to allow her to carry the baby to terms without worries about material needs. – No interest in the matter? No emotional pain and suffering on top of the money that’s gone?

NO GOOD ANALOGIES – SERIOUSLY ?

Also, in looking for proper analogies beyond the hard-cash interests that are so highly valued in much of American standing jurisprudence, it would be worth exploring statutory grandparent standing in relation to SAPCRs (suits affecting the parent-child relationship), not to mention that there is SCOTX precedent on that issue. What’s the hard-cash interest there? If the family court gets involved and grant them visitation rights, the grandparents will out of money, much rather. Not to mention likely thousands of attorney’s fees that can’t be shifted.

How have the grandparents been injured to justify giving them statutory standing to sue for access, possession, and conservatorship, and make their case?

[Formerly Known as Stash]

1. The fact that the courts are involved is irrelevant. The non-delegation and similar doctrines exist to make sure the state, rather than volunteers, prosecute the action. (See my response to Rossami above). There are several distinctions between what the courts do, and what prosecutors do, including prosecutorial discretion. What would you think about a regime that would allow private parties to sue to collect, say, $2500 for traffic violations that they recorded on their phones or on their own radar guns? Good luck getting away with a warning ticket, or getting supervision/driver school instead. Course you’d have to pay their attorney’s fees too. In other words, the incentive for a private party to sue is different from the state’s reason for enforcing the law. One is in the public interest, the other in the private. Private attorney general laws that are constitutional have safeguards to assure the interests are congruent.

2. Er, the fallacy of your “standing” argument is that the statute does not limit standing to those who might have it on some basis. What if, in the above hypothetical on traffic violations, it takes place in my neighborhood? The street I drive to work on every day? Still does not save the broad statute. Your “access to the courts” argument is just silly, because that “access” does not (and did not) exist without the statute and its unconstitutional delegation of state powers to private parties.

3. The issue of grandparents’ rights, prospective adopters’ rights and the like, are interesting issues, but have nothing to do the case. That is, legislation tailored to these issues would be worth discussing, but this statute is not designed to address them.

4. If you are going to make arguments in all caps, you should at least have some minimal notion of what you are talking about–say familiarity with relevant case law. From what I see above, you are not a lawyer–which does not disqualify you from making a legal argument, but should suggest to you that maybe it should not take the form of a lecturing screed–and if you are a lawyer, I feel sorry for your clients and hope, for your sake, that your malpractice insurance is fully paid.

[WPHDM]

RE: “Your “access to the courts” argument is just silly, because that “access” does not (and did not) exist without the statute and its unconstitutional delegation of state powers to private parties.”

This confuses state constitutional standing and statutory standing that comes with the statutory creation of a civil cause of action (in the case of SB8, independenty from any injury). Additionally, the interests of parents in their offspring predate the US and Texas constitution.

If you are right, the “silliness” should be directed to the Texas Lege.
See Texas Family Code, Chapter 160, which authorizes commencement for suit to establish parentage pre-birth. This statute recognized interests that are also relevant to the assertion of constitutional standing in the SB8 contexts, namely the interest affecting the fetus father.

Sec. 160.611. PROCEEDINGS BEFORE BIRTH. (a) A proceeding to determine parentage commenced before the birth of the child may not be concluded until after the birth of the child.
(b) In a proceeding described by Subsection (a), the following actions may be taken before the birth of the child:
(1) service of process;
(2) discovery; and
(3) except as prohibited by Section 160.502, collection of specimens for genetic testing.
Added by Acts 2001, 77th Leg., ch. 821, Sec. 1.01, eff. June 14, 2001.

[Formerly Known as Stash]

Um, my point was that the statute does not limit the persons able to sue to those who have an interest. It certainly does not limit it to a parent! If it did, I’m sure it would not be causing such a stir, and standing would not be an issue. Nor would the non-delegation issue (related, but separate from standing) arise. Consider a statute that says “any person may sue WPHDM for tax evasion” (and it doesn’t matter if the claim is frivolous) “for a penalty of $10,000”. It may be that your spouse, ex-spouse or employees etc., conceivably have some interest, but declaring the statute invalid for non-delegation does not translate into “denying them access to the courts” when they otherwise have no basis for suing.

[Carl_N_Brown]

Checking up in Wikipedia on the Common Informers Act 1951 (the repeal) I found this in the Background:
In 1931, Millie Orpen, a solicitor’s clerk, brought an action as a common informer against a cinema chain for opening on a succession of Sundays, contrary to the Sunday Observance Act 1780, s.1. Orpen claimed £25,000 against the cinema company and individual members of its board of directors. The claim was based on a forfeit of £200 per performance per defendant. The judge, Mr Justice Rowlatt, expressed some distaste for the proceedings. He found against the cinema chain, awarding Orpen £5,000, with costs, but found for the individual directors on the grounds there was no evidence they were guilty on any particular Sunday. Costs were awarded to the directors against Orpen. The judge granted a stay pending an appeal by the company. Later in the year, Orpen brought a claim against another chain, but was thwarted by a change in the law legalising Sunday opening for cinemas before her case could be decided.

Thought the thread could use a little British humour.

[Greg J]

SCOTUS put those cases on the “rocket docket”. But it’s been almost 6 weeks since they heard it.

Could be the opinion released tomorrow will be on SB 8.

But if it isn’t, kiss Roe goodbye

[Greg J]

5 – 1 – 3
https://www.supremecourt.gov/opinions/21pdf/21-463_3ebh.pdf
Roe is toast

[WPHDM]

TEXAS ABORTION INDUSTRY SCORES IN LOCAL MDL COURT IN AUSTIN

Just finished reading this 47-page triple-motion disposition: Quite a piece of work.

The most stunning line remains this: “this case is not [sic] about abortion”.

THE GIST: The law is unconstitutional because it provides for penalties. Duh. Isn’t that what regulatory/proscriptive statutes typically do? And no, they are not automatic. Also more (not novel but familiar) legal-mind Luddism: SB8 is unprecedented, so we can’t have that. You know … there is no precedent. And it’s traditionally been done differently.

Professor Wassermeister & his South Texas colleague are going to have a field day with the procedural posture stuff. Not to mention the nonfederal constitutional arguments.

Leaving aside the substance of the opinion order, we see here that the Texas court system is dealing with this stuff, and the SCOTUS can just do its thing in Dobbs. Next step in Austin: Mitchell’s appeal of the denial of the anti-SLAPP motion. That looks like it’s the only thing that’s appealable right now since the declaratory SJ is only partial, and pending matters remain, including permanet injunctive relief to deprive Texas Right to Life of its right to petition for good, and attorney fee claims.

In related grapevine lore, Gomez of Gomez v. Braid race-to-courthouse fame has thrown the Texas non-suit towel in San Antonio (which Judge Peeples failed to mention as one of the suspect urban venues along with Austin, Dallas, and Houston).

[ReaderY]

I think the standing argument is the clearest one. The Texas Constitution requires parties to lawsuits to have standing; SB8 does not. The only question is whether a judge is obligated to give SB8 a saving construction by imposing a standing requirement.

I think the other issues are a bit more questionable. The second seems indistinguishable from the first. If a plaintiff had standing he would be redressing his own injury, not the state’s. And I think the difficulty with the Due Process argument is that tbe Supreme Court has upheld federal private attorneys general statutes. After all, the defendant is getting the equivalent of a civil fine, and is getting a trial before it is imposed.

There are other provisions – such as letting plaintiffs but not defendants recover costs, and unlimited damages in the absence of standing ($10,000 is a minimum, not an absolute amount) – that strike me as very questionable. Indeed, any damages beyond a fine in the absence of standing seems questionable, as the plaintiff has not been injured.

[Martinned]

I’ve never understood that argument. If a statute entitles me to recover a sum of money from you, and I bring suite against you claiming that money, how do I not have standing? Clearly we have a disagreement, and clearly I stand to gain personally from winning. What more is needed?

[Voize of Reazon]

The argument is that the Texas constitution standing requirement requires injury, not simply a stake in the outcome. It is an argument that would not be available in all states.

[Martinned]

And not being able to recover a debt that I’m owed is not an injury?

[Valkanis]

You aren’t owed a debt in the first place, the proscribed abortion doesn’t affect you. Your ideological disagreement with it does not create standing.

[Martinned]

If the (statute) law says someone has to pay me money, that’s a debt. Ideological disagreement doesn’t have anything to do with anything. You don’t have to oppose abortion to sue under SB8.

[Voize of Reazon]

The $10,000+ is a potential award of statutory damages, and doesn’t become a debt until judgment is entered.

[Martinned]

Well, it doesn’t become a debt that you can collect until judgment is entered anyway.

[Voize of Reazon]

I don’t believe the concept of inchoate debt has ever been stretched so far as to include when both the amount and the creditor’s identity are indeterminate.
A better conclusion is that It isn’t a debt of any sort, it is a prize awarded to the contestant who earns it by being the first to successfully prosecute. Until they do that, and the court awards the prize, no money is owed.

[WPHDM]

Re: “inchoate debt” (potential min. liquidated statutory damages under SB8)

Good argument for an amicus brief in Alan Braid v. Oscar Stilley et al up in Illiniois. Docket here:
https://www.courtlistener.com/docket/60626475/parties/braid-v-stilley/
Local interpleader “defendant” Felipe Gomez has so far been unsuccessful with his protestations that he is not seeking the $10,000 bounty. He has since filed a sworn disclaimer for good measure.

[F.D. Wolf]

I think this case will be reversed for much the same reasons previous efforts in federal courts have failed. There really is no case to adjudicate.

If I think a law is unconstitutional, can I go to the courthouse and ask a judge to declare it so? Obviously not. I need a defendant. Can I just sue any random defendant? Imagine a state statute that provides “calling someone a ‘jerk’ is defamation per se, and anyone that does so is liable for $10,000 in damages to the insulted party.” In my case to have this statute declared unconstitutional, can I name my neighbor as a defendant under the theory that I want to call him a jerk and he might sue me?

I don’t think anyone would seriously argue that provides sufficient standing, yet that seems to be essentially what happened in this case.

[mtkesq]

Facial challenges happen all of the time. For example, look at the Supreme Court’s unanimous ruling in Susan B. Anthony List v. Driehaus. In the S.B. 8 case there is the credible threat of enforcement against a constitutionally protected right. In your “jerk” hypothetical, you have not established that your neighbor is even going to consider suing you let alone meet the necessary threshold for credible threat.

[F.D. Wolf]

The SBA case illustrates the proper way to challenge SB 8: as a defense in an actual case, not as a pre-enforcement challenge.

SBA put up a billboard against a candidate. After a complaint from the candidate, the election committee held that SBA had violated election law. AT THIS POINT, we have an actual case or controversy, and SBA interposes, as a defense, that the law is unconstitutional.

To analogize that with my hypothetical, it would be as if SBA had put up the billboard (or even was merely contemplating putting up the billboard, then immediately went to court for a declaration that the election law this billboard might violate is unconstitutional. This, of course, also implicates the issue of ripeness.

The way to challenge SB 8 is to interpose a claim of its unconstitutionality as a defense after one is sued under its provisions. There seems to be such a hysteria about this law, that its opponents demand the regular course of civil procedure must be short-circuited. I disagree,

[mtkesq]

From the District Court ruling, the billboards in SBA were never erected. Before they could be, Driehaus went to OEC and challenged that they violated the law. The billboard company did not want to put anything up while legal issues were pending.

[JohnSteed]

I don’t see how a parade of slippery slope horribles is pertinent to the existence of standing, etc. It practically admits to being result oriented rather than based on analysis of the issues. Whether the legislature confers standing when it statutorily creates a private right of action will, I think, vary from state to state.

[Formerly Known as Stash]

It does vary from state to state. On the other hand the standing issue also has an impact on the delegation issue–which also varies from state to state. That is, if there is no standing, then it is more likely that a state function is being farmed out to private parties, which may be unconstitutional under another doctrine.

[Commenter_XY]

So, there really is a way for SB-8 to receive judicial review. You see, for weeks I read right here at VC how this law was specifically designed to frustrate legal review. I thought it was designed that way as well. This, despite multiple federal district court cases, argument at the appellate level, and an argument before SCoTUS (in record time). But Ok, none of that counts as a judicial review.

Well, now you got your judicial review. A TX state judge ruled ‘Yo, you can’t do that (under TX law)’. Will this ruling be appealed? Who knows. What I do know is that the world did not end, and the parade of horribles we heard so much about back in August when SB-8 was passed did not materialize by December. I am glad the horribles did not materialize, personally.

Until the Dobbs decision is handed down, does this TX state court decision really matter all that much? I mean, SCoTUS could moot US v TX now, right (in light of state court decision on a state law)?

[Syd Henderson]

Yes it matters because the enforcement mechanism needs to be struck down. That’s a different issue than the abortion aspects.

[Rossami]

It was designed to frustrate legal review. That does not automatically mean the design worked. In this case, the design “failed” because the law got reviewed – but it also “succeeded” because the review was much more limited (and WAY more complicated) than it would have been for a more conventionally-structured law.

[tkamenick]

Lots of reasons why it’s a bad idea, not so hot on why it’s actually unconstitutional. How is there a depriviation without due process? You don’t pay the fine until a court determines you broke the law, and you can raise the unconstitutionality of the law you are alleged to have violated as a defense.

[WPHDM]

PLENTY OF PROCESS, STARTING WITH NOTICE OF CLAIM (ORIG. PETITION in TX)

The due process starts right there with service of citation (name for summons in Texas), which provides formal notice to the defendant — here in the first instance abortionists & staff and abortion funders because that’s where the volume would be (for “idologically motivated” litigants), not to mention the deep pockets (for incentivized “bounty” seekers) — and they then have the opportunity to make any defensive arguments they want: state constitution, federal constitution, an inherent intergalactic abortion-über-alles imperative, you name it …. They can even make new stuff up as long as their adovates urge metamorphoisis (“extensions”) of existing precedent in good secular faith, not to mention when they hire high-echelon lawyers by the dozen to do the urging in unison for good coin of the realm and greater persuasiveness.

At the minimalist level, to prevent a default judgment in Texas state court only a general denial is initially required per Tex. R. Civ. P. 92: “Defendant hereby enters a general denial.” Signature and contact info. – Done. Due process (course of law in Texas state constitutional lingo) then gets going from there.

The notion that the SB8 plaintiffs are unsupervised is baffling indeed.

FETUS BOUNTY: DEAD OR ALIVE

Also, regarding the Unchained Django theme:

The only act the “bounty hunters” are authorized by the Texas Lege to do is initiate civil lawsuits and then see if they manage to win under governing law and the rules of courts (–> Standards for litigation as applicable to civil suits generally). All Schultzes and Djangos in the two or more hemispheres are not deputized to use violence; nor does any other extra-judicial (unsupervised, i.e., outside the scope of ongoing judicial review) authority to act come with the private cause of action. Everything happens (or doesn’t) under the close scrutiny of the courts.

That said, good state constitutional arguments can be made that statutory standing should be limited to Texas residents. The obvious distinction here is that Texans are subject to state law — good bad or neutral — whether they like it or not, and that 29 million is large enough a pool of volunteers. But arguably that’s a policy argument that the Texas Lege should take up next (special or regular) session. In the meantime the Third Court of Appeals and eventually the Texas Supreme Court can constrain the scope of premissible statutory standing in an apprpriate case as I have argued elsewhere. That’s a question of state constitutional law and state code construction.

Note however, that the open courts provision does not *require* injury to access the courts (which would be a limiting principle) but instead purports to assure access to those who have an injury. It is the Texas Supreme court that read it as limiting (in some cases/scenarios), but they are free come up with a different conclusion when construing the intent of the Texas Legislature in regard to abortion laws. They are not bound by Article III and SCOTUS jurisprudence relating to it because Texas trial courts ain’t Article III courts.

Note also that Judge Peeples, like Judge Pitman, failed to engage in any severability analysis (mandated both by the text of SB8 and the Texas Code Construction Act), and didn’t even address the difference between as-applied and facial challenges.

[John F. Carr]

I thought the decision was weak in a few places, but as an amicus brief to the appeals court it should do its job.

The TCPA is Texas’ anti-SLAPP law, which protects against lawsuits over activities protected by the First Amendment. The judge held it did not provide a defense in these cases. He thinks giving information about filing SB 8 cases (at least with the expectation that a case might be filed more easily with the information) is not protected by the First Amendment. Which means he could order every defendant not to mention SB 8. (Cue Basil Fawlty, “don’t mention the war!”)