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Suppose Alice performs an abortion, and Bob files a suit based on Texas SB8. Can Charlie also file a suit against her? Could a million people file suits asking for $10k each?

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    Since it civil its not exactly a double jeopardy issue, but a good question otherwise. Sep 9, 2021 at 21:55
  • It isn't a double jeopardy issue at all. Still a question worth analyzing.
    – ohwilleke
    Sep 24, 2021 at 0:30

3 Answers 3

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Sec. 171.208(c) of the law provides:

(c) Notwithstanding Subsection (b), a court may not award relief under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion performed or induced in violation of this subchapter, or for the particular conduct that aided or abetted an abortion performed or induced in violation of this subchapter.

The apparent intention, as I see it, is that a defendant is only supposed to have to pay the $10,000 damages once, so that it's not possible for a large number of plaintiffs to sue and collect.

Some others have pointed out that there may be a loophole in case there are judgments in several cases before the defendant pays for the first one, and that in such a situation the defendant might be required to pay more than once. It doesn't seem to me, on its face, that such a loophole was intended, but we may have to wait and see how courts handle it. In any case, it would seem that the defendant could minimize this possibility by paying the judgment as quickly as possible.

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    "she'll only have to pay at most once" the fine. There's another provision about the defendant not being entitled to recover attorney's fees/cost even if they lose the suit per 171.208(i) whereas the plaintiff is awarded them automatically if they win 171.208(b)(3). Granted that makes nuisance subsequent lawsuits not so profitable, but they could be used to drive someone out of business just over one abortion, if a group were willing to incur some costs to do so. Sep 9, 2021 at 22:58
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    Once per offense...
    – Ron Beyer
    Sep 9, 2021 at 23:22
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    @Fizz: That doesn't stop the court from granting equitable relief, (maybe?) sanctions, and/or referring the attorney(s) involved to the state bar for further investigation (which, in theory, could lead to consequences up to and including disbarment). Attorneys are not generally allowed to sign their names to frivolous lawsuits, and the courts have a wide array of possible responses to such misbehavior. While that doesn't apply to pro se litigants, they can still be held in contempt and ordered to stop filing claims.
    – Kevin
    Sep 13, 2021 at 23:06
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    @Kevin: actually, since only one party may be awarded the statutory damages, that creates an incentive for multiple to sue as quickly as possible. For a non-yet-decided suit/incident, it's not at all illegal for others to file as many claims as possible. According the law, these can be filed in county jurisdictions, so that creates and interesting race... Do note that only the defendant having already paid is precludes a judge from awarding. Having lost any number of lawsuits does not. Sep 14, 2021 at 9:24
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    @Kevin So it's not inconceivable they may lose several suits "in parallel" in various counties if, e.g. they appeal, as county judges don't have proof of payment so they are entitled to award statutory damages.. 171.210 allows for claimants to sue in their county of residence. Sep 14, 2021 at 9:25
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The potential liability is not limited to $10,000 plus costs as the law is written.

Sec. 171.208(c) provides that:

a court may not award relief under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion performed or induced in violation of this subchapter, or for the particular conduct that aided or abetted an abortion performed or induced in violation of this subchapter.

If multiple suits are filed against the same person for the same action, which clearly seems to be permitted, and if one suit has been closed and damages have been awarded but not yet paid, perhaps because an appeal has been filed, or the defendant needs time to pay, then the "full amount" of the statutory damages has not been paid, and by he letter of the law a second judgement can be awarded for the same actions, and a third, and as many more as the courts have allowed to be filed in close succession, provided that each case has reached the judgement stage before the first has been fully paid.

Now it may well be that the Texas courts would interpret the statute so as to not award judgment when a prior judgement has been awarded but not paid. But that is not what the letter of the law says, and there have not yet been any court rulings on this point to the best of my knowledge. So multiple awards are at least possible.

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  • -1 This reading is not possible to stand appeals because it would result in an absurd construction that the legislature could not have intended. Also, since the “damages”, whether or not named that way, are punitive in nature, it would require that due process; punishing one twice because two caught them would be both absurd and a double jeopardy. No reasonable person would seriously consider the possibility that a ruling in line with what is above proposed as possible, would not be overturned on Appeal either. Going much beyond the other hypos scope would result in all sorts of [...]
    – kisspuska
    Dec 25, 2021 at 4:35
  • All sorted do Constitutional questions, and would land sooner or later before the U.S. Supreme Court.
    – kisspuska
    Dec 25, 2021 at 4:36
  • @kisspuska I cannot be sure what members of the TX legislature had in mind, but clearly they wanted to prohibit all abortion insofar as possible. I rather suspect they did intend at least a threat of multiple suits to deter providers, and the law was designed to be hard to overturn and hard to appeal against. Whether it will be upheld on appeal I cannot say, and my answers are only on its effect as written. But the drafters were clearly not afraid of absurdities. Dec 25, 2021 at 14:29
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Charlie (and potentially a million or more others, up to the capacity of the Texan civil court system) are free to file suit against Alice as well. Whether or not they will receive payments is more complicated.

There appears to be potentially unlimited liability, partially depending on timing.


Consider:

The ‘full amount’ of statuary damages is defined as “an amount of not less than $10,000”.

If x ≥ $10,000,

    … what is the ‘full’ amount of x?

Depending on how that is interpreted by a court…

A losing wealthy defendant that can (and does) pay immediately may be immune from further statutory damages; any defendant appealing a loss (or one who paying in installments) would continue to be subject to further suits and judgements.

[Note that 171.208(c) uses the term ‘paid’ and not ‘awarded’.]


[Disclaimers: I am not licensed to practice law (neither in any extant jurisdiction nor on television), and the above may be affected in unknown ways by the any Rules of Civil Procedure that may apply in Texas state courts.]

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