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Regardless of where you stand on the abortion issue, Texas Senate Bill 8 should give you at least one concern: Your ability to challenge the constitutionality of law has been chilled. In the legal context, a chilling effect is the inhabitation or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction.  For example, in Lamont v. Postmaster General381 U.S. 301 (1965), the United States Supreme Court struck down a federal statute requiring the Postmaster General to detain communist political propaganda unless the recipient affirmatively indicated his/her consent to receive the same.  In that case, the Court unanimously held the statute was unconstitutional because it imposed an affirmative obligation on the part of the addressee: the addressee had to go and claim the communist propaganda from the post office in order to receive it.  As Justice Brennan wrote in a concurring opinion, “Public officials, like schoolteachers who have no tenure, might think they would invite disaster if they read what the Federal Government says contains the seeds of treason,” and therefore, the law had a deterrent (or chilling) effect.  In short, the Supreme Court reaffirmed our right to free speech cannot be curtailed by the federal government, and for the first time, it indicated the chilling effect of a statute alone might make the statute unconstitutional.  Makes sense.

Now let’s look at Senate Bill 8.  Setting aside the undue burden issue, the law—in unprecedented fashion—permits the recovery of attorneys’ fees from any ATTORNEY who represents a litigant challenging the restriction.  So if a client walks into my office and wants to challenge the constitutionality of the law, and if I take up that mantle, and if we lose, I am personally on the hook for the other side’s attorneys’ fees, which, if the matter were to go up to the United States Supreme Court, would literally amount to millions of dollars.  That’s a risk most attorneys, including me, are not willing to take.  And that was the point.

The first cold front in Texas came early this year.

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