In two cases currently pending before the Fort Worth Court of Appeals, TCJL has filed amicus letters urging the Court to adjudicate the constitutional issues raised by SB 8, the legislation creating a no-injury cause of action by any person against any person for aiding or abetting an abortion. It is important to emphasize that TCJL’s letters take no position whatsoever on the underlying policy issues involved in the bill but only on the constitutional standing and delegation issues decided by MDL Judge David Peeples in Texas Right to Life v. Van Stean, which is currently pending before the Austin Court of Appeals (No. 03-21-00650-CV).
As our letters state:
We do not purport to know how a court of last resort will view SB 8, but we can be sure of one thing: until the constitutional issues are resolved, every single defendant will respond to an SB 8 lawsuit or Rule 202 petition (for presuit deposition) with a constitutional challenge. It will constitute legal malpractice not to do so. Given that SB 8 puts the whole onus of costs and attorney’s fees on a defendant for having the temerity to invoke and vindicate its constitutional protections (not to mention the damages awaiting an unsuccessful defense), it seems appropriate that whether a defendant actually possesses any such protections in a post-SB 8 world be decided before the torrent of litigation is further unleashed against Texas businesses. If we are going to create a lawsuit industry like this, we should at least do it in an orderly and clear-sighted fashion.
The cases, which will be submitted on March 7, are before the court of appeals in slightly different postures. Sadie Weldon v. The Lilith Fund for Reproductive Equity (No. 02-22-00413-CV), the trial court denied Weldon’s TCPA motion to dismiss. In the other case, Texas Equal Access Fund v. Ashley Maxwell (No. 02-22-00347-CV), the trial court dismissed Texas Equal’s constitutional challenges. Last year TCJL filed a similar amicus letter with the Austin Court of Appeals in the Van Stean case. In view of the high stakes involved in resolving the constitutional issues—not to mention the constitutional status of several bills pending in the Legislature and in other state legislatures that follow the SB 8 model—Texas businesses deserve an answer so that they may know where they stand. Delay is doing nobody any good and serves only to destabilize the business climate.
