Here a brief update of the status of SB 8-related litigation in state courts.

In re Texas Heartbeat Act Litigation (No. 21-0782)

The main event in state court is the multidistrict litigation (MDL) pre-trial proceeding presided over by Judge David Peeples. Shortly after SB 8 became effective last September, several abortion support organizations and physicians filed a series of lawsuits against Texas Right to Life (TRL) challenging the constitutionality of SB 8 and seeking injunctive and declaratory relief against its enforcement. On October 14, 2021, the MDL Panel granted TRL’s motion to consolidate those cases for pre-trial proceedings. Judge Peeples held a hearing on November 1, 2021 on Plaintiffs’ motion for summary judgment and TRL’s plea to the jurisdiction and motion to dismiss under the Texas Citizens Participation Act (TPCA). On December 9, 2021, Judge Peeples issued an order granting Plaintiffs’ summary judgment motion in part and denying TRL’s jurisdictional and TCPA motions. In his order, he held SB 8 unconstitutional on three grounds: standing, punishment without due process, and unconstitutional delegation of state enforcement power to private citizens. TRL filed an interlocutory appeal on its plea to the jurisdiction and TCPA motion in the Austin Court of Appeals, which stayed further MDL proceedings. The appeal was briefly transferred to the Amarillo Court of Appeals but subsequently transferred back to Austin, where it remains pending.

Rule 202 Petitions

Following Judge Peeples’ order, other parties represented by TRL’s lawyer, Jonathan Mitchell, began filing Rule 202 pre-suit deposition notices against abortion support organizations Lilith Fund and Texas Equal Access Fund. If granted, Rule 202 petitions allow a party to take depositions of potential defendants in anticipation of filing suit. The first two of these were filed in Jack and Denton Counties and assert that these organizations funded at least one illegal abortion while enforcement of SB 8 was enjoined by a federal district court. They responded to the Rule 202 Petitions by filing declaratory judgment actions challenging the constitutionality of SB 8 (the issues already decided by Judge Peeples). The cases were transferred to the MDL as “tag-along” cases, but Judge Peeples remanded them to the trial courts because the order establishing the MDL limited its purview to cases with a “TRL connection” and “enforcement” cases. The petitioners proceeded to file TCPA and Rule 91a motions to dismiss the declaratory judgment action.

Meanwhile, Mitchell has filed additional Rule 202 petitions in Howard County against employees of Whole Women’s Health and Alamo Reproductive Services. These petitions claim to anticipate the filing of SB 8 actions and criminal investigation. Mitchell further sent a litigation hold order to all of the MDL parties and their counsel demanding the preservation of documents and asserting that all communications between the parties and their lawyers are not privileged under the “crime-fraud” exception. Mitchell then filed another Rule 202 petition in Smith County against the managing partner of Sidley Austin LLP in conjunction with the cease-and-desist letter to the firm from the Freedom Caucus.

Plaintiffs’ Motion to Expand the MDL

On July 27 of this year the MDL Plaintiffs filed a motion to expand the MDL to encompass the five Rule 202 petitions currently pending in Jack, Denton, Howard, and Smith counties, the declaratory judgment actions seeking to block private enforcement of SB 8 by parties other than those in concert with TRL (recall that the same lawyer is on all the cases), and any civil suits filed to enforce SB 8. The motion further asks the MDL Panel to stay proceedings in those cases pending a ruling on the motion, which it has since done (although there is ambiguity regarding the stay’s effect on the trial court rulings in Jack and Denton Counties). The Rule 202 petitioners are opposing the motion, which is pending.

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