In an almost 50-page opinion, retired District Judge David Peeples, sitting by assignment in the 98th District Court in Travis County, has issued an order striking down SB 8’s procedural requirements as violating the Texas Constitution. Importantly, the opinion does not concern the constitutionality of the Texas Fetal Heartbeat Act or other abortion-related statutes. This is the first of several articles that will follow in the next few days breaking down the court’s analysis and discussing the current status of the burgeoning SB 8 litigation across the state.
The case, Allison Van Stean, et al v. Texas Right to Life, et al (No. D-1-GN-21-004179), is one of fourteen filed by physicians, women’s health and abortion-support organization board members, employees, and volunteers challenging SB 8. The Texas Panel on Multi-District Litigation appointed Judge Peeples, a former Bexar County District Judge, to serve as the MDL pre-trial judge last fall. At a hearing last November, the court heard argument on Texas Right to Life’s (TRL) plea to the jurisdiction, TCPA motion to dismiss, and Plaintiffs’ motions for summary judgment and declaratory and injunctive relief. In these motions, Plaintiffs challenge SB 8’s civil procedures, which as the court points out, “are completely new, there is not a single factual precedent for this court to consult—from Texas or from the rest of the United States, from the founding until now.”
The court denied TRL’s plea to the jurisdiction and TCPA dismissal motion. It likewise denied Plaintiffs’ contentions that SB 8 violates the Texas Constitution’s guarantee of privacy and that there is a right under Texas law to keep patient medical records and decision-making out of public litigation. With respect to the motion for summary judgment, the court granted summary judgment on three issues: (1) standing for uninjured persons; (2) punishment without due process; and (3) delegation of enforcement power to private persons. The court denied Plaintiffs’ motion for a permanent injunction against TRL encouraging people to file SB 8 actions, which will be tried on the merits. Other constitutional arguments remain pending. Finally, the court issued a declaratory judgment holding SB 8 unconstitutional on the three grounds listed above.
As noted above, Judge Peeples denied the motion to dismiss on the basis that TRL failed to show that the TCPA applied to the lawsuit because Plaintiffs’ case is not “based on or is in response to” TRL’s exercise of First Amendment Rights. Rather, Plaintiffs’ suit seeks to stop TRL from “encouraging persons to file SB 8 lawsuits or to provide information to that end.” In the parlance of TCPA analysis, in other words, the lawsuit involves the defendants’ conduct, not their rights of speech, petition, or association. The court determined further that Plaintiffs’ had made a prima facie showing for a declaratory judgment on the constitutional issues, not their request for a permanent injunction must be tried on the merits for a determination of factual disputes. Finally, it held that Plaintiffs’ claims were ripe and that at least one plaintiff had established standing to sue, which is good for the whole case.
TRL filed an interlocutory appeal with the Austin Court of Appeals with respect to the TCPA and standing issues. In January, SCOTX transferred the case to the Amarillo Court of Appeals, but shortly thereafter the case was transferred back to Austin. (This little flurry seems a bit odd to us.) The last brief was filed at the end of March, and the case has been sitting there ever since. It is interesting to note that TRL’s briefing avoids the substantive constitutional issues altogether. There is the additional irony that TRL challenges Plaintiffs’ standing, when SB 8 itself requires none. Why not just tackle the elephant in the room right now and have it out over the constitutionality of SB 8? SCOTX is going to have to address it sooner or later, and they have a perfect case in which to do it. What happens next in this case remains to be seen. In tomorrow’s report, however, we will look more closely into Judge Peeples’ constitutional analysis.