Update, August 31, 1:45 p.m.: A judge has granted a temporary restraining order to Michelle Simpson Tuegel, barring Texas Right to Life from suing her under SB 8.
In one week, the most extreme—and, frankly, bonkers—abortion ban will go into effect in Texas.
Much has been written about the absurd nature of Senate Bill 8: Texas Republicans banned abortion at six weeks’ gestation, which is before many people know they’re pregnant. Even worse than that, however, they’ve turned enforcement of the law over to the public.
SB 8 deputizes anyone in the country to become an abortion enforcer in Texas: If you suspect that a person has provided an abortion, aided and abetted an abortion, or merely intends to do either of those things in violation of SB 8, then you can sue that person! And if you win, you’ll collect at least $10,000—maybe more!
It’s nice work if you can get it.
And Texas Right to Life (TRL) is trying to get it. But not if Michelle Simpson Tuegel—an attorney and victims’ rights advocate in Dallas, who famously won a settlement for the gymnasts abused by longtime USA Gymnastics team coach Larry Nassar—has anything to say about it.
Earlier this week, Tuegel filed a lawsuit seeking a temporary restraining order against Texas Right to Life and its legislative director, John Seago, barring them from filing lawsuits against her under SB 8. (She is also asking for a ruling against Gov. Greg Abbott, Attorney General Ken Paxton, and the Republican lawmakers who backed SB 8, alleging they didn’t have the authority to pass the law. She says the law violates her rights under the U.S. and Texas constitutions.)
Suing TRL to stop the organization from filing future lawsuits against her is an unusual move, to be sure. But SB 8 is an unusual law.
Under normal circumstances, Tuegel would have filed a lawsuit against Greg Abbott and Ken Paxton and asked the court to enjoin government officials from enforcing SB 8. The court would have likely granted the restraining order because SB 8 is a pre-viability abortion ban and—sing it with me—pre-viability abortion bans are unconstitutional.
But Texas is tired of hearing that refrain. For nearly a decade—since the explosion of abortion restrictions in 2011—Texas has been leading the way at throwing abortion bans at the wall to see which ones will stick. And for nearly a decade, courts have been slapping Texas in the face and telling Texas to knock it off.
So to get around this pesky problem of courts striking down their blatantly unconstitutional laws, Texas Republicans crafted a law that makes it virtually impossible to successfully challenge.
As I wrote last month:
SB 8 turns over enforcement of the law to private citizens and forbids its enforcement by public officials.
This way, anyone wanting to challenge the law literally can’t. They can’t file a lawsuit against the attorney general or the head of the department of health—the traditional defendants in lawsuits like these—because public officials have no enforcement power. You can’t sue a public official for something they will never do, and which the law says they’re not allowed to do.
But that doesn’t mean Tuegel isn’t going to give it a go.
SB 8 creates a ‘mercenary society’ rife with chaos
SB 8 is a “gross and obvious legislative overreach,” according to the lawsuit, and it “creates a mercenary society” by deputizing private citizens to enforce the law and allowing everyone except government officials to bring a civil lawsuit against people who violate the law.
And who are those people? Anyone who provides an abortion in violation of the law, aids and abets such an abortion (whatever that means), or even simply intends to do those things.
“SB 8 places a bounty on people who provide, aid, speak about, or indeed, even think about abortions, inviting random strangers to sue them throughout the state,” Tuegel’s lawsuit says.
Tuegel claims the law is unconstitutionally vague; it doesn’t specify what aiding and abetting is. Does driving someone to a clinic count? What if you walk into a clinic to use their bathroom because you really have to pee, and you see a pregnant woman coming up behind you so, being the kind person you are, you stop and hold the door for them? Well, my friend, you may have just aided and abetted an abortion, and you may be liable. Or you may not be. That’s the thing. No one knows because the law is a disaster.
The preparation for September 1, when the law goes into effect, has been hilariously disastrous: Last week, a website popped up encouraging enforcement and reporting of people that could be sued for violating SB 8. You can “join the Team of Pro-Lifers working to enforce the Texas Heartbeat Act,” according to the website hosted by TRL. (This past weekend, the website was flooded with fake tips from individuals claiming to work at abortion clinics: My favorite tip from a list of options posted on social media was, “I saw the receptionist throw nail polish at an elderly man,” which somehow captures the absurdity of this entire affair.) In response to this deluge, TRL seems to have begun blocking IP addresses from outside Texas … as if virtual private networks (VPNs) don’t exist.
Undeterred by the procedural cesspool Texas Republicans have created, Tuegel isn’t just asking for injunctive relief against Texas Right to Life and John Seago. She’s also seeking declaratory relief against Abbott, Paxton, and every state senator and representative who sponsored the law. (Declaratory relief is when a litigant goes into court not seeking monetary damages, but just wanting to understand what their rights are.)
In this case, Tuegel wants to know whether the law violates a host of rights under both the Texas and U.S. constitutions, including her right to free speech (because talking about abortion with a client who then proceeds to get an abortion could open her up to civil liability) and her right under the Texas constitution to have her day in court.
Setting aside the important First Amendment rights at issue in this case—rights which conservative Republicans generally pretend to care about, but perhaps only when it involves sanctioning the refusal to bake cakes for gay couples—the law is a cynical effort to drive abortion rights out of the courtroom and under the control of mercenaries: rogue agents like TRL who are accepting “tips” from God-knows-where alleging God-knows-what against God-knows-whom.
SB 8 penalizes attorneys for challenging Texas’ unconstitutional abortion restrictions
The Texas Constitution contains an “open courts” provision that guarantees all litigants the right to redress their grievances and the right to have their day in court. But SB 8 makes this virtually impossible in a way that is damn near diabolical.
To understand how, I’m going to have to talk to you about attorneys’ fees and lawsuit costs, so strap in.
Lawsuits are expensive and can take years to resolve. When Texas lost Whole Woman’s Health v. Hellerstedt, Texas taxpayers took a hit to the tune of $3.6 million. The costs of filing court documents, conducting discovery, and going through the trial and appeals process costs hundreds of thousands of dollars—millions if the case makes it to the Supreme Court. These fees often act as a deterrent: Courts will sometimes order the losing party to pay the prevailing party’s costs and attorneys’ fees. If you don’t have a good case, you could end up owing an alarming amount of money. That’s a daunting prospect for a group of abortion snitches like Texas Right to Life. So Texas Republicans put their thumb on the scale.
The Texas law intentionally drives a wedge between attorneys and their clients when it comes to abortion rights litigation. Any attorney who challenges an abortion restriction in Texas and loses any of their claims automatically becomes liable for the other side’s attorneys’ fees along with their client. That means if their client can’t pay, the attorney will have to cough up the money.
Any attorney who decides to represent a target of these abortion snitches risks their entire business by bringing a claim challenging the constitutionality of Texas’ abortion laws.
I cannot overstate how unusual this is. When a party to a lawsuit is the prevailing party in that lawsuit, if the law permits them to recoup attorneys’ fees from the other side, usually that burden falls solely on the litigant and not the litigant’s attorney.
And this doesn’t apply only when attorneys challenge SB 8. It applies when attorneys challenge any of the dozen abortion restrictions that Texas has on the books. It fundamentally changes the way lawsuits operate procedurally.
But it gets worse: The law also fiddles with the definition of “prevailing party” and further stacks the decks against attorneys challenging Texas’ abortion restrictions.
Usually a party to a lawsuit is deemed “the prevailing party” if they win their most important claims. Under Texas law, the prevailing party is the party “vindicated by the judgment rendered.”
But SB 8 changes that for abortion rights litigation. If you challenge an abortion law in Texas, you have to win every single claim you bring. If you don’t, the law says that you’re the losing party and you automatically become liable—with your client—for the other party’s attorneys’ fees.
So if you’re an attorney like Michelle Simpson Tuegel, and you challenge an abortion restriction (not just this six-week ban, but any restriction at all) you either must prevail on every single claim you bring or risk having to pay, whether in full or not, the other side’s costs.
If your first thought is, “what attorney is going to risk having to pay hundreds of thousands of dollars in attorneys’ fees to defend their clients from frivolous lawsuits brought by abortion snitches?” then congratulations! You’ve had the correct thought.
Michelle Simpson Tuegel says she will continue to counsel her clients about abortion even though she risks her entire law practice by doing so. But not many attorneys are willing to do that, which means a lot of people ensnared by this law won’t be able to find an attorney to represent them.
And that’s precisely what Texas Republicans intended.