The unfortunate precedent established by SB 8 holds that any person can sue any other person for just about anything the party in power at a particular point in history doesn’t like. Legislation introduced late last week by Rep. Harold Dutton (D-Houston) uses the SB 8 template—down to the letter—substituting a long list of assault weapons and precursors for abortion. We can hardly wait to see what’s next.
HB 925 echoes similar legislation enacted in California last summer and likely to be considered in other states as well. As far as Texas is concerned, Rep. Dutton’s bill isn’t going anywhere, but that’s not the point. The bill deftly illustrates how easy SB 8 has made it to punish individuals and organizations in Texas courts for lawful activities in other jurisdictions.
Another case in point: HB 645 by Rep. Steve Toth (R-The Woodlands). This bill creates a no-injury cause of action by which any person may sue a financial institution or business that considers so-called “value-based criteria” in its business practices. Presumably aimed largely at the growing prevalence of ESG (environmental, social, and governance) in investment practices, the definition of “value-based criteria” is so globally broad that it could subject virtually any decision of a financial institution or business made virtually anywhere in the world to litigation in a Texas court. And the bill makes it worth someone’s while to do that, imposing statutory punitive damages of $100,000 per occurrence and mandatory attorney’s fees and costs.
HB 319 by Rep. Tom Oliverson (R-Cypress) represents a variation of this genre. This bill would allow a person to decline to participate in a health care service (other than emergency care or certain life-sustaining treatment) for reasons of conscience, which is very broadly defined in the bill. While the bill immunizes from civil or criminal liability a physician or health care provider who declines to participate in a health care service wholly or partly for those reasons, it creates new liability on the other side by: (1) prohibiting a person from taking adverse action against another person because the person declines to participate in a health care service for reasons of conscience, including licensure, certification, employment, staff appointments or privileges, and various other actions; and (2) creating a private cause of action for injunctive relief, actual damages for “psychological, emotional, and physical injuries resulting from a violation of this law,” court costs, and attorney’s fees. A health care facility must develop a written protocol for circumstances in which a person declines to participate in providing a health care service, but the protocol may not require a health care facility, physician, or health care provider to counsel or refer a patient to another physician or facility.
We have no opinions whatsoever about the various causes underlying these bills, but we do have opinions about the liability they impose on businesses and health care providers. In addition to the direct cause of action, these bills almost certainly create knock-on liability for alleged injuries to other parties involved in activities these bills proscribe or authorize. For example, HB 645 raises potential hazards for financial institutions and businesses from investor and shareholder litigation, not to mention its implications for employer-employee and customer relations, which could threaten the continued viability of the businesses themselves. Under HB 319 as introduced, it is not difficult to imagine a liability scenario in which a patient might either not receive or not timely receive adequate care under any number of non-emergent conditions that progress to more severe complications. If the provider who declined to participate in the patient’s care has immunity, the providers who end up treating that patient most certainly do not (which begs the question, what if no one treats the patient?).
In any event, these bills and many others filed by members of both parties aim to use private litigation against professionals and employers to enforce a variety of economic and social policy positions. These individuals and entities are simply trying to do their jobs and run their businesses as best they can under extremely challenging economic conditions. The Texas Miracle took off because the Legislature got out of the way, not because it told people trying to create jobs and make a living for themselves and their families what to do and how to do it. And once government starts down this road, there’s no end to it. Today the issue is X, tomorrow Y, and next day Z. No one can operate in that environment for very long.
We should not take it for granted that the Texas Miracle can absorb the uncertainty and unpredictability generated by piling on potential new liability exposure for businesses. The same folks who voted with their feet when they fled California can and will pick up and go somewhere else, if we do not stay the course established by the conservative principles that got us here in the first place.
