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The Procedural Puzzles of SB8, Part IV: Test Cases for Defensive State-Court Litigation

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Howard Wasserman and Charles Rhodes | 9.14.2021 12:24 PM

Our second and third posts explained the limited offensive actions available to providers and advocates. This will likely require providers and advocates to raise their constitutional challenges to SB8 in a defensive posture in state court after being sued by a claimant for violating SB8. But providers so far have not performed or announced an intent to perform a prohibited post-fetal-heartbeat abortion that could trigger suit.

SB8's civil action is available against any provider or advocate who (1) performs or induces a prohibited abortion, (2) aids or abets a prohibited abortion, or (3) intends to perform or aid a prohibited abortion. If an actual abortion is performed or assisted, the successful SB8 claimant can recover the statutory damage award of $10,000 or more, injunctive relief, and attorney's fees and costs. But once the defendant demonstrates that the full statutory damages have been paid for any abortion, "a court may not award" further relief regarding that specific abortion. If instead the provider or advocate merely "intends to" engage in prohibited conduct, damages are not available; the successful claimant is limited to an award of injunctive relief and costs and attorney's fees.

Two possible mechanisms exist to create a test case. First, a provider could announce an intent to perform, and an advocate could announce an intent to aid or abet, a prohibited abortion. Although statutory damages are not available, the provider and advocate could confront multiple simultaneous suits across the state seeking injunctive relief. In addition to the defense costs, the provider or advocate might be liable for multiple awards of attorney's fees and costs to successful SB8 claimants.

The other mechanism is to perform one—and only one—prohibited abortion without indicating any intent to continue to do so. Although that triggers the statutory damage award of $10,000 or more if an SB8 claimant prevails, no subsequent court may award additional relief with respect to that abortion. Even if there are multiple suits filed, the provider or advocate will only be subject to one award of damages, attorney's fees, and costs. This limitation on recovery to a single claimant may result in fewer copycat suits from other ideological opponents of abortion.

A potential risk, though, in performing or aiding a single abortion is........

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