Abortion Providers Win Order to Stop Group Enforcing Texas Law

(Bloomberg Law) -- Texas abortion providers won a temporary restraining order against Texas Right to Life and its associates Friday, blocking them from suing providers and health care workers at Planned Parenthood health centers in the state under a new law.

Planned Parenthood sued the anti-abortion group in state court to stop the group from enforcing Texas’ new six-week abortion ban.

Texas’ six-week law creates a “probable, irreparable, and imminent injury in the interim” for Planned Parenthood, its physicians, staff, and patients throughout Texas, Judge Maya Guerra Gamble of the Texas District Court for Travis County wrote in the temporary restraining order.

Providers would have no adequate legal remedy for that injury if they’re subjected to private enforcement lawsuits against them, Gamble said.

The order applies to Texas Right to Life and Planned Parenthood centers in the state.

The providers challenged the law’s most unusual aspect—its delegation of enforcement power to private citizens, meaning that anyone, anywhere can sue, in Texas state court, an alleged abortion provider who violates the six-week ban. The law entitles a winning plaintiff to $10,000 per abortion, plus costs and attorneys’ fees.

Texas Right to Life and its legislative director, John Seago, have already started recruiting private citizens to sue providers like Planned Parenthood of Greater Texas Surgical Health Services, the complaint said.

The anti-abortion group created a “whistleblower” website to identify potential plaintiffs, as well as informants to provide data on alleged violations of the law, the complaint said. Providers asked the court to block these lawsuits.

S.B. 8 went into effect Sept. 1, as the U.S. Supreme Court declined to block its enforcement pending legal proceedings to determine its validity. The top court’s refusal to stop the law is being widely seen as a sign that it’s likely to approve strict abortion restrictions—and possibly overturn Roe v. Wade.

The federal litigation challenged the law under Supreme Court precedent giving a woman a federal constitutional right to end a pregnancy before viability. Thursday’s complaint alleged the Texas law is unconstitutional under several provisions of the Texas Constitution, including a state right to privacy.

The law bans doctors from performing abortions after the detection of fetal cardiac activity, which occurs at about the six-week mark. It will eliminate abortion rights for about 85% to 90% of Texas women, as most people aren’t even aware they are pregnant at this point, providers said.

The law also broadly defines potential violators to include anyone who helps a woman get a post-six week abortion, the complaint said. Anyone who makes an appointment for a woman, accompanies her to a clinic, or pays for the procedure is potentially liable under the terms of the law.

“At every turn, S.B. 8 purports to replace normal civil-litigation rules and clearly established constitutional rules with distorted versions designed to maximize the harassing nature of the lawsuits and to make them impossible to fairly defend against,” the complaint said.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Dozen Suits So Far

This is one of about a dozen suits that have been filed in Texas state court challenging S.B 8 so far, Texas Right to Life’s Seago told Bloomberg Law earlier Friday. He expects those suits to fail eventually, but the providers already have won restraining orders in several cases filed in Travis County and overseen by Judge Amy Clark Meachum, he said.

Meachum is an “activist judge” with close ties to Planned Parenthood, Seago said.

Seago doesn’t believe the state-court based suits have merit, and isn’t discouraged by the early losses. S.B. 8 is controversial and involves “uncharted legal territory” that’s led providers’ attorneys to come up with “creative” ways to stop its enforcement, he said.

Texas Right to Life will continue doing its due diligence and making its case to uphold the law, Seago said. It also will appeal those district court decisions until it finds “a court that takes this law seriously,” he said.

Causes of Action: Texas Constitution’s equal protection clause, prohibition on vague laws, right to personal privacy, free speech protections, prohibition on retroactive laws, open courts provision, separation of powers provision, and prohibition on unlawful delegation.

Relief: Declaration that law violates Texas Constitution; temporary restraining order and permanent injunction blocking Texas Right to Life, Seago, and people acting in concert with them from filing private litigation to enforce S.B. 8; costs and attorneys’ fees.

Attorneys: Kaplan Law Firm PLLC, Planned Parenthood Federation of America, and Waters & Kraus LLP represent the providers.

The case is Planned Parenthood of Greater Tex. Surgical Health Servs. v. Texas Right to Life, Tex. Dist. Ct., No. unavailable, filed 9/2/21.

Laurel Calkins also contributed to this story.

To contact the reporters on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com; Maeve Allsup in San Francisco at mallsup@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com

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