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If a physician performs an abortion in Texas, then immediately makes a payment of $10k to the person of their choice for violating SB8, are they immune to further damages under the bill?

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  • Why do you think the lawsuit would be first come first served?
    – Joe W
    Commented Sep 13, 2021 at 20:43
  • This would be better asked over on Law SE. But this law seems to promote a civil suit, not a criminal case. I don't believe double jeopardy applies to civil suits, and I believe every wronged party is allowed to file an independent suit. In other words, if there were only one seventh week abortion in the state of Texas, every single Texan could technically sue. the people involved. Of course, the defendant could ask to have the the separate suits joined... but this is all supposition. You should ask on law. Commented Sep 13, 2021 at 23:12
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    @TedWrigley: SB 8 itself contains a "double jeopardy"-type clause, saying that a defendant who has already paid out the full amount over one particular abortion cannot be sued again for that same act. (It's actually the reverse of double jeopardy, in which being found innocent makes you immune; here, it's being found guilty that does.) Commented Sep 14, 2021 at 16:34

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Almost certainly the answer to this is no because SB.8 talks of the $10K as being (minimum) statutory damages. (The actual provision 171.208(b)(2) is for damages "not less" than $10K, i.e. the court can award more in the first suit.) If e.g. someone breaks the Fair Debt Collection Practices Act by making spurious claims against a group of people, they are each entitled to up to $1,000 statutory damages each (and class action is specifically allowed/mentioned). Generally, you can't avoid paying damages to an injured party by paying them to someone unrelated (before). There's nothing in SB.8 to suggest otherwise, the wording is:

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

Only proof of payment (not even having lost another suit on the same incident in another county) precludes a judge from awarding the statutory damages. (Claimants can file suits in their county of residence per 171.210, which me not knowing the Texas civil procedure too well, seem to allow multiple parallel lawsuits to proceed.)

Now SB.8 is special in that limits relief to the first who sues (or maybe the first who wins) while enabling a very large class to claim injured status and sue... which in itself doesn't make a lot of sense when speaking of statutory damages, but it's a novel kind of relief, so who knows what courts may decide. (It would be interesting if a court determined that that first-claimant limit in SB.8 is unconstitutional, under either Texas or federal constitutions. In some other state laws, there is sometimes a limit on the total amount of damages out of a single incident, but it's not awarded on a first-winner basis, instead there's a provision to "allocate to each claimant his equitable share of the total".)

Granted a defendant could come with a legal strategy that look something like: when sued in Texas county arrange for a "friendly" organization (members) to immediately sue in another county. Fight the first lawsuit so as to delay judgement, but immediately concede the one from the "friendly" organization members, so that only the "friendlies" get the statutory damages (first), possibly e.g. donating them back to the defendant thereafter. Whether this would work really depends on details in the Texas civil procedure law, which I'm not too familiar with.

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    One question is whether settling a case for the full $10K grants the immunity. If so, we can imagine a situation where a friendly party waits outside the room as the abortion is done. One minute after it's done, before any other party could know about it, friendly party hands the doctor a demand letter, doctor hands over a check, they sign a receipt and settlement paperwork. Then friendly party hands the check right back, or maybe they switch roles the next day. Commented Sep 14, 2021 at 13:39
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    It's interesting too that SB 8 suits basically cannot be settled for anything less than the full amount. AFAIK the court system relies on the fact that the vast majority of cases settle before trial, with the parties compromising on an amount less than what plaintiff originally demanded. For SB 8 the defendant can't do that because they won't get the immunity, so every case must be fought to the end (especially if settlements for the full amount don't count either). The courts are going to love that workload. Commented Sep 14, 2021 at 13:42
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    @NateEldredge: If the abortion provider is a charitable organization (Planned Parenthood springs to mind), could the $10k "donation" by the friendly party to the abortion provider be tax-deductible? Commented Sep 14, 2021 at 13:53
  • @MichaelSeifert: Could be, but I believe the settlement payment itself was taxable income to the friendly party, so it's just a wash. Commented Sep 14, 2021 at 13:59
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    Wouldn't it be possible for two people aiding in the same abortion to sue each other immediately and then end up even?
    – Philipp
    Commented Sep 21, 2021 at 19:52

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