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...
Read Full Story: https://reason.com/volokh/2021/09/14/the-procedural-puzzles-of-sb8-part-iv-test-cases-for-defensive-state-court-litigation/
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