Abortion

Thoughts on the Supreme Court's Texas Abortion Ruling—and How to Prevent it From Setting a Dangerous Precedent

The decision is wrong, but consistent with previous precedent. Yet it also threatens to create a road map for circumventing constitutional rights. Fortunately, the latter can be prevented.

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Last night's 5-4 Supreme Court ruling in Whole Women's Health v. Jackson did not overrule Roe v. Wade or make any kind of decision on the scope of the right to abortion. But it did refuse to issue a preliminary injunction against the enforcement of SB 8—Texas' sweeping new law barring nearly all abortions that take place later than six weeks after the beginning of pregnancy. While SB 8 is clearly inconsistent with Roe and other Supreme Court abortion precedents, the five conservative justices in the majority refused to issue an injunction blocking it, because of the law's unusual enforcement mechanism. This ruling could potentially set a dangerous precedent that threatens numerous other constitutional rights. Fortunately, there are ways to mitigate that risk.

Instead of giving state officials the power to enforce the law, SB 8 delegates enforcement entirely to private parties, who can bring lawsuits against abortion providers, and get $10,000 or more in damages for each abortion. As the Supreme Court majority notes, this makes it difficult to issue an injunction against the law, because such injunctions are usually directed against specific people or entities who enforce laws, or have plans to do so. In this case, however, no government official has enforcement authority, and it is not possible to identify a specific private party who plans to enforce it, either. The one private defendant in the present case—a prominent Texas pro-life activist—claims he has no plans to bring any SB 8 lawsuits himself. Even if the Court had enjoined this particular individual from bringing SB 8 lawsuits, that would not prevent other people from doing so.

This approach to injunctions is closely related to the Supreme Court's precedent on the doctrine of "standing," which  holds that plaintiffs can only bring cases in federal court if they have suffered an actual or imminent "injury." Here, arguably, there was no such injury because neither the government nor a private party had taken any steps to enforce SB 8 against them, and it is far from clear that anyone will do so in the future. The four dissenting justices in last night's ruling make several good points. But, at least as far as I can tell, they don't have an answer for this particular procedural dilemma.

For a more detailed explanation of the procedural obstacles to challenging SB 8, see this excellent article by Charles "Rocky" Rhodes and Howard Wasserman. The authors (like me) are opposed to the Texas law. But they nonetheless conclude that existing Supreme Court precedent makes it difficult or impossible to use "offensive" litigation to block its enforcement. In a recent blog post, Wasserman points out the following about last night's ruling:

[Justice] Breyer [in his dissent] says a case could proceed against 'those particularly likely to exercise the delegated powers.' This is correct. The problem is no such person has been identified. When[one] has been, I think a § 1983 action can proceed, including enjoining any pending state proceeding. At the same time, that does not really help–even if WWH identified likely enforcers and got interim relief against them, that interim relief cannot stop anyone else from enforcing in the interim.

In my view, last night's ruling was wrong because Court's general approach to standing and injunctions is wrong. I have previously summarized my objections to current "standing" rules, which are not actually required by anything in the text or original meaning of the Constitution, and also cannot be justified based on pragmatic considerations.

Similar criticisms apply to the Court's approach to injunctions. Even if we do not know which individuals, if any, plan to enforce an unconstitutional law, or have the authority to do so, a court should be able to issue a general injunction precluding enforcement of that law by anyone who might otherwise be in a position to undertake that task.

If it turns out that no one is willing or able to enforce it, then the injunction will be unnecessary, but also won't do any harm; it would, in that scenario, forbid something no one was going to do anyway. But such a general injunction could play a valuable role in forestalling violations of constitutional rights in situations where it is difficult to predict in advance who the violators will be.

Unfortunately (or, happily, depending on your point of view), it's unlikely the Supreme Court will adopt this approach to standing and injunctions anytime soon. If it does not, and Texas' SB 8 ploy works, it could potentially set a precedent for other state laws circumventing constitutional rights. The tactic pioneered by Texas could be copied by red and blue states alike.

It is not difficult to think of ways liberal states can take advantage of this strategy. Constitutional law scholar Michael Dorf outlines possibilities involving gun rights and "hate speech":

For example, contrary to McDonald v. Chicago, New York could ban possession of all handguns and grant any person the right to sue someone found to possess a handgun for $10,000 per day the handgun is possessed, while forbidding public enforcement. Massachusetts could ban hate speech defined in a way that violates RAV v. St. Paul and use the same enforcement mechanism.

Blue states could also use the same approach to get around the Supreme Court's First Amendment rulings on campaign finance, such as the Citizens United decision. Simply authorize any resident of the state to file a lawsuit against anyone who spends more than X dollars on campaign-related ads, and allow successful plaintiffs to claim $10,000 in damages for every $1000 of "excessive" spending on political advertising they uncover. If the SB 8 gambit works, conservatives might yet rue the day they set this dangerous precedent.

Red states, of course, can play the same game on issues that go beyond abortion. Almost any constitutional right can potentially be attacked in similar ways.

To be clear, the problem here is not simply that Texas is using private law suits as an enforcement mechanism. Many laws—including many supported by the political left—rely heavily on enforcement by private litigants. That is true of numerous environmental regulations, consumer protection laws, and land-use restrictions, among others. California's notorious CEQA statute empowers NIMBYs (who in that state tend to be left-wing) to use private litigation to block new housing construction and other development. This exacerbates that state's serious housing shortage, and even leading to such absurd outcomes as a court ordering UC Berkeley to freeze enrollment.

Thus, condemnations of SB 8 for empowering private "vigilantes" are off-base, unless you also disapprove of the many other laws that  use private litigants as enforcers. I'm old enough to remember when conservatives denounced environmental and civil rights laws that utilized "private attorneys general," while many on the left defended them as essential regulatory tools. On both right and left, attitudes towards the use of private litigation as an enforcement mechanism often depend on whose ox is being gored.

The troubling aspect of SB 8 is not the use of private enforcement, as such, but the resort to it as a mechanism for evading judicial review. The danger is that this tool will be copied by other jurisdictions, and used to undermine a variety of other constitutional rights.

Fortunately, this risk can be mitigated, even if not entirely eliminated. As Rhodes and Wasserman explain at some length, abortion providers can still challenge the constitutionality of SB 8 "defensively"—in the course of defending against lawsuits brought by private plaintiffs authorized by the bill. If such a lawsuit is brought against them, the defendants can argue (correctly!) that SB 8 is inconsistent with Roe and other Supreme Court precedents, and potentially prevail on that basis. Similar "defensive" strategies can be used by people resisting encroachments on other constitutional rights that might be authorized by states that try to copy the SB 8 model.

The problem is that the mere threat of litigation can have a "chilling effect" precluding people from exercising the rights in question.  Many Texas abortion providers have apparently preemptively stopped scheduling abortions that violate SB 8, even before any lawsuits have been brought against them. As Michael Dorf notes, this chilling effect might be especially great in the SB 8 case, because there is a chance that the Supreme Court will ultimately uphold the law on the merits, by overruling or severely limiting Roe v. Wade. The same might be true in other areas of law, where existing doctrine is sufficiently unclear or controversial that defendants in SB 8-style lawsuits cannot be certain of ultimately prevailing on the merits.

There is no perfect solution to this problem. But it can be mitigated. In the SB 8 case, leading pro-choice organizations such NARAL, the ACLU, and the National Organization for Women, can commit to providing high-quality pro bono legal representation for abortion providers who choose to defy SB 8 and open themselves up to lawsuits as a result. They could also commit to paying the defendants' fines, should the latter ultimately lose. These and other organizations have large enough war chests, I believe, to make such a commitment possible.

The promise of pro bono representation and compensation for damages should change the incentives of abortion providers, and greatly reduce any chilling effect. And the prospect of facing a well-funded, highly capable opposition might deter many potential plaintiffs from utilizing SB 8 in the first place.

If other states, whether red or blue, use similar tactics to target other constitutional rights, activist organizations in the relevant field could commit to similar strategies. Gun rights organizations could offer similar protection for gun owners, free speech advocates for targets of legislation restricting speech rights, and so on.

This strategy may not work in every case. In particular, it won't work in situations where the constitutional rights targeted lack well-organized supporters with deep pockets. But it can potentially work in a wide range of situations. Many of the rights most likely to come into the cross-hairs of partisan state governments do have supporters with the resources needed to implement this counter-strategy. That's certainly true of gun rights and free speech rights, among others.

My strategy would not preclude the Supreme Court (or other courts) from simply ruling against abortion rights (or other constitutional rights claims) on the merits. If the Court wants to overrule Roe v. Wade because a majority of justices think it's a terrible decision, they can still do so. The same goes for Citizens United, decisions protecting gun rights, and so on. The purpose of my proposal is not to freeze any particular precedent in place, but to forestall the use of private enforcement mechanisms as a tool for evading judicial review of laws that threaten constitutional rights, and in the process creating dangerous "chilling effects."

That's a goal worth pursuing regardless of what you think of Roe v. Wade and abortion rights. Even if you welcome Texas' circumvention of Roe, you might not be so happy to see the same tools used to threaten constitutional rights you care about more.

NEXT: "What Is Written with the Quill Can't Be Cut Out with an Axe"

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  1. I am still trying to wrap my mind around how it is possible for the Texas state lege to craft a law so blatantly unconstitutional and leave no way for the federal government to challenge it.

    I am sure they sleep well at night thinking they are doing “God’s work” but I cannot comprehend what drives people to be so cruel and corrupt to enact something like this.

    1. What’s cruel is killing babies because you’re too selfish and cheap to bring him or her to term.

      1. They can still kill babies they just have to drive a bit if they want to do it later. And the law will probably be pared back if not removed entirely pretty soon anyway. WHAT AN INHUMAN ATROCITY ON WOMEN’S RIGHTS

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      2. Ilya wants to sue people to harass them because they will sue to harass abortion provoders.

        I will sue anyone who sues anyone for suing any abortion provider. Anyone can sue me.

        Nice rent seeking.

      3. ” What’s cruel is killing babies because you’re too selfish and cheap to bring him or her to term. ”

        If you are aware of anyone who is killing even a single baby, the sole moral and responsible course would be to alert the proper law enforcement authority.

        Otherwise, the sole responsible course would be to keep the childish, superstitious gibberish to yourself and leave the public debates to competent adults.

        1. Kirkland, when an abortion is done, something that was alive is killed. What is the thing that is killed? Specific species please. As someone who is constantly babbling about the virtues of logic and science, certainly you can enlighten us.

          My comment is neither pro or anti abortion. It’s simply a biology question.

        2. Artie of course is flailing about realizing that his world is crashing down around him. 7-2

          1. I am not only enjoying defeating bigoted conservatives in the culture war but also am looking forward to the work of a 7-6 mainstream majority on the Supreme Court.

            You clingers didn’t think you actually had a chance to be involved in shaping American progress, did you? Not really . . . right?

            1. What species, Art? Quit dodging.

              1. The same species as a clipped fingernail, a removed skin tag, or a blastocyst, clinger. Set childish superstition aside, or do not expect to be treated with respect by educated, reasoning, modern, mainstream Americans.

                1. Oh, so clipped fingernails grow into human beings? I’m not anti abortion, just pointing out your scientific idiocy. Which ain’t great considering your schtick.

                  1. Plenty of doctors pointing out the idiocy and ignorance of several parts of the Texas clingers’ statute, including the point that what clingers consider a “fetal heartbeat” is merely electrical impulses from something that may never develop into a heart, let alone a person. The side that embraces and relies on kindergarten-level superstition is poorly positioned to offer pointers on science and reason in the reality-based world to its betters.

    2. I am still trying to wrap my mind around how it is possible for the Texas state lege to craft a law so blatantly unconstitutional

      While I can’t read minds, I would imagine that the supporters of this law feel pretty strongly that it isn’t unconstitutional.

      and leave no way for the federal government to challenge it.

      I have to imagine that the constitutional issue will be raised the very first time someone tries to enforce the law, at which point the federal government will be able to participate just as much as they were here.

      1. These reason-disdaining hayseeds believe they are on a Mission From God.

        Like Elwood, but without the redeeming qualities.

    3. It is 1860. As we all know, Dred Scott, and the constutional right to own a slave, are the law of the land.

      Would you have a problem with a territorial legislature, to which Dred Scott clearly applies, passing or enforcing a law just like this one except with the word “abortion” scratched out and the word “slavery” written in in crayon?

      Would you consider such a law “corrupt” and “cruel”?

      Would you consider people who would support such a law totally incomprehensible?

      Honestly?

    4. Opponents of abortion believe that abortion extinguishes an innocent human life. You may not agree with that, but if you cannot “comprehend” why that would trouble some people, then you have exceedingly poor powers of comprehension.

      1. That, or they are superstition-shackled, childish, misogynistic, and obsolete partisans.

        1. Certainly possible. After all, John Calhoun said exactly the same thing about opponents of slavery. Exactly the same thing. Was confident tolerance and progress would sweep superstition and hate into the dust.

          Superstition won over enlightenment back then, didn’t it. Come to think of it, didn’t that also happen with eugenics, back when all the reputable scientists supported it. Karl Pearson wrote a famous essay for one of the eugenics organizations about how embracing science means people have to leave obsolete emotional sympathies behind.

          You’d like it. It’s very much your writing stule. Come to think of it, it’s so much like what you write you might have cribbed from it.

          1. Calhoun was a bigot. In the current context, it’s the anti-abortion side that features the bigots.

    5. I am still trying to wrap my mind around how it is possible for gun rights supporters to zealously defend their right to keep and bear arms while seeking to deny women the right to control their own bodies.

      I am still trying to wrap my mind around how it is possible for abortion rights supporters to zealously defend the right of women to control their own bodies while seeking to deny gun owners the right to keep and bear arms.

      I am still trying to wrap my mind around how it is possible for both sides to be so blind to their own hypocrisy while condemning the other side for being hypocritical.

      1. It’s quite easy. We observe that the 2nd amendment is an actual amendment to the Constitution, while the ‘right’ to an abortion is a judicial figment.

        1. So rights come from the government? That’s your contention?

          1. Well, obviously some rights do, because they only exist in the context of government. For instance, the right to vote, or a right to a jury trial; In a state of nature you’d have neither. And it’s not like you can up and say, “I feel like voting today!” and the government has to hold an election to oblige you. These rights only exist to the extent the government creates the context to exercise them, and, yes, only exist because the Constitution sets them out.

            Other rights are innate, like freedom of speech, or the right to self defense.

            But you can’t reason so:
            1) Not all rights are explicitly guaranteed by the Constitution.
            2) Abortion isn’t specifically guaranteed by the Constitution.
            3) But I feel like saying it’s a right.
            Therefore,
            4) Abortion is a right!

            That’s not even a plausible logical fallacy, but it’s the one you’re attempting here.

            I’m not saying abortion isn’t a right because the Constitution doesn’t grant it. Rather, one of the reasons the Constitution didn’t guarantee it is that it wasn’t a right to begin with. The Court just pulled that out of their collective asses.

            1. That’s not at all the case. The constitution as a legal document is a definition of what government is and a limitation to what it can do. Forcing a woman to host a baby up to the point of viability is not listed in any state constitution that I’m aware of, and certainly not the US version. Therefore it is a right, inasmuch as it isn’t a legitimate concern for government. Roe was decided on shaky legal grounds, but it ultimately got the correct outcome, in my opinion.

              It should have been decided on 9th Amendment grounds and/or the doctrine of natural negative rights.

        2. Now do the right to not have a needle forcibly jabbed in your arm for vaccination. No such right is “enumerated” in the Constitution (as if that was the purpose of the Constitution to limit our rights… sigh).

          From where do you contend that you have such a right?

          1. If the reasoning in abortion cases were actually seriously intended, a right not to be forced to undergo a medical procedure would be a slam dunk. But “bodily integrity” is only taken seriously for abortion, nothing else.

            1. Well maybe that’s true of the political left, but the libertarian case for abortion rights and the right to not be jabbed with a needle are one and the same. Namely, you have sovereignty over your own body, or as you put it “bodily integrity.”

              The problem is that typically the political left defends abortion and not the other, while the political right defends the other and not abortion. Both hold a hypocritical view over what sovereignty over one’s body means and it smacks of rights for me and not for thee.

              1. Except the libertarian case against abortion rights – that the child has a right to not bodily integrity in the form of not being sliced into pieces and killed.

                1. Right. Back when I joined the LP, and for a significant while after, it was recognized that abortion was an issue libertarians could reasonably disagree about. And that a significant fraction of libertarians were pro-life. (I was one.)

                  Notice that the original LP platform avoided the topic. It wasn’t mentioned until 2004, and the abortion plank has since been subject to repeated votes to repeal it, which as far as I can tell get closer to success each time. A large minority of the delegates think it never should have been added in the first place.

                2. The argument that a woman MUST support a child’s right to life up to the point of viability is acknowledging a positive right to life. Libertarians don’t believe that positive rights are valid.

                  It’s no different than requiring a doctor to perform a life-saving operation against his will. If the patient or child isn’t viable on their own, they don’t have an absolute right to life.

                  1. No more so than requiring a parent to take care of his child.

        3. Yeah, I guess bodily autonomy MUST come from the govt. Surely we couldn’t have that without government right?

          What a load of pure unadulterated bullshit.

          1. He doesn’t even seem to accept that. Abortion rights have come from the government, inasmuch as the courts are the often forgotten 1/3 of the government.

            As mentioned above, both the political left and the political right are guilty of hypocrisy on bodily autonomy. The side that believes abortion should be between a woman and a doctor, would seemingly just as soon mandate at the point of a gun that the same woman would have to be vaccinated. And of course the other side believes just the opposite. Neither side, at least from a majority standpoint, believes the same woman has enough autonomy to use marijuana, let alone heroin or some other hard drugs.

    6. “leave no way for the federal government to challenge it.”

      Part of the problem is that no one challenged the law for 2 full months after it was passed.

      “Plaintiff abortion providers waited nearly two months—until July 13—to file their complaint, and it wasn’t until nearly a full month later, on August 7, that they filed a motion for a preliminary injunction.”

      If they wanted a hearing on the merits prior to September 1, perhaps they needed to do a better and more timely job of pleading their case?

  2. Did you intend to post a message with no text?

  3. At last a discussion of “private attorneys general”.

    1. Yep. It seems to me there’s a difference between using “private litigation” to advance a social cause that is merely ancillary to the actual relief sought for the plaintiff’s private harm, and “private attorneys general” actions. Somin seems to refer to them as the same thing.

  4. Construct a legal fiction whereby a law is deemed akin to property for the purpose of making it the subject of litigation, thus allowing an individual to file a suit in rem against the law. Anyone who has an interest in seeing the law upheld can seek to become a claimant. At the conclusion of the suit, the judge’s decree is focused on the law in question, and effects everyone, regardless of whether they are a party to the suit.

    You just need a group of law professors to start churning out articles creating the rationale for the approach.

  5. I don’t understand what it means for a decision to be “wrong” when it’s consistent with past precedent, or for the right approach to be something the courts will not adopt in the foreseeable future. Apparently Prof. Somin has been outside the cave and seen the true Platonic Form of standing doctrine, in which case it’s a shame he didn’t get the true Form of abortion law while he was there. Of course, it’s possible that he did, and that he knows how Roe v. Wade is “required by [something] in the text or original meaning of the Constitution.” Many people would love to know that.

    1. He went to great lengths explaining what he meant by this decision being wrong. And many people have written how abortion rights can be squared with both the text and original meaning (whatever that means) of the constitution. Read Jack Balkin’s famous article, for instance.

      1. Yes, he meant that if he were a Platonic guardian, unbound by precedent or his fellow judges, he would dramatically reshape United States federal standing doctrine. I don’t see the point of that analysis, which isn’t the law and is never going to be the law. You might as well as say that the law of gravitation is “wrong.” (Though admittedly one would have to rank above the Platonic guardian level to change that one.)

        1. Exactly. Why bring up your contention that the Supreme Court is misunderstanding fundamental legal concepts like standing or injunctions? It just detracts from the credibility of the rest of the piece.

          1. Oh, come on, the Supreme court gets stuff wrong all the time, and sometimes it’s pretty obvious stuff, like saying that that “all” in the 6th amendment doesn’t mean “all”, just because they didn’t think minor crimes deserved a right to jury trials.

            1. I understand “wrong” in the sense of “substantially all the intelligent people who have studied this issue disagree with you,” and I understand “wrong” in the sense of “your enterprise will fail if you proceed as you intend,” and I understand “wrong” in the sense of “God disagrees with you,” but the Supreme Court can’t be wrong in any of those senses. (Unless you think God cares about federal standing.) I don’t understand using “wrong” in the sense of “Brett Bellmore [or Ilya Somin] disagrees with you.”

              1. In this case, “Wrong in the sense that the words logically preclude the Court’s interpretation.”

  6. “there is a chance that the Supreme Court will ultimately uphold the law on the merits, by overruling or severely limiting Roe v. Wade”

    So they better get a lower-court injunction against the law *now,* so they can do as many abortions as possible before the Supreme Court spoils everything.

  7. Ah, finally the definitive exposition of Supreme Cowardice (double meaning intended)

    The Post by Mr. Somin has ample discussion of how the law might be challenged, but it will take someone with sufficient courage and resources to do so.

    But as far as courage is concerned, it is so totally lacking by the Justices who refused to stay the law until it could be litigated that even the most ardent anti-abortion rights individual should be moved to horror. The five justices could have indicated they will over-rule Roe, but they are terribly afraid of the political fallout. They could order an emergency hearing, but then they would have had to hear the case on its merits. They could have done a lot of things, but they lack the fortitude to face the issue head on and instead just hid behind their judicial robes in blatant disrespect for all of the parties.

    This case and the actions of these Justices is a disgrace to the judicial process in this nation, and augers a terrible future for a nation that wants to be a nation of laws, not a nation of politicians sitting on the Supreme Court.

    1. You’re quite right in the sense that the Supreme Court should have overruled Roe yesterday. Given their standing ruling, I’m not sure that would have been an option in *this* case, but there were plenty of other cases in which they could have done it.

      Given that they’re cowards, I’m at least relieved they didn’t stretch Ex Parte Young beyond recognition in order to let lower federal courts do the Supremes’ dirty work for them.

      As to the effect of this precedent on *real* (non-abortion) constitutional rights like speech and guns, maybe something can be worked out like Prof. Somin suggests.

      Or we could get rid of the Eleventh Amendment, so that people could sue the states, corporately, for any unconstitutional law, without having to sue some particular officer.

    2. They aren’t cowards, they are Catholics. Did nobody notice this court packing?

      1. Yes, but Thomas Aquinas they ain’t

      2. There is certainly a disproportionate number of Catholics on the Supreme Court at the moment, relative either to the U.S. population, or to the percentage of Catholics among lawyers, or among judges, or however you would choose to measure that question. But of the 5-4 vote last night, two of the four dissenters are Catholic, and two of the majority justices are Protestants. So your comment misses the mark.

      3. A bit of religious discrimination, bigotry and hatred?

        1. Anti-Catholic discrimination is kind of traditional in American law, as it happens. Which just makes the current composition of the Supreme court ironic.

  8. I really admire the evil genius of this law. Something I would never have thought of. But, unfortunately, I’m a California lawyer and not a Texas lawyer. Just imagine the profit potential.

    X is unemployed, or under-employed. And has had enough kids. Make sure she becomes pregnant. Have her discuss her options with her parents, her husband, her older kids, her personal doctor, her 7 best friends, her guidance counselor at school. Get the abortion (post 6 weeks, of course). Sue all the above. Collect 10K per person bounty.

    I assume the lawyer’s legal fees are in addition to the 33% he or she normally collects, yes? Ka-ching!!!

    {Hmm…if this fictitious woman were to post early on, on a Facebook group or Reddit thread, and ask for advice re abortion; maybe we could even sue the 150 other people there who advocated for (or just supported) an abortion at 2 months? Ka-ching, Ka-ching!!! Or could we sue only those who are living in Texas?}

    1. [re the above: It of course would work equally well for women who had been raped and didn’t discover their pregnancy until 6+ weeks after their rape. But I’m not seeing how a lawyer could advertise/solicit these women without coming across as overly ghoulish.]

      1. I’m sorry, when exactly have lawyers worried about coming across as ‘overly ghoulish’? Have you never seen or heard a lawyer commericial?

        1. Sidney,
          Yes, my tongue was firmly in my cheek while typing. Here in California, recent laws have curtailed a tiny bit what lawyers can say in ads. But, pretty much, we’re free to advertise and solicit new clients…being ghoulish is probably a feature, and not a bug, of most personal injury attorneys’ ads.

    2. sm,
      Do you think that this law is seriously meant to be enforced, or is it a clever tactic to force SCOTUS to accept a direct challenge to Roe and get directly to the issue?

      1. The law may not really be meant to be enforced in court, but it is meant to intimidate women in Texas (and those who support and love them) into not exercising the constitutional right to make their most intimate and difficult decisions for themselves.

        1. How would it intimidate women? The law doesn’t apply to them. It’s meant to intimidate doctors, who risk massive liability if they perform abortions.

          1. The abetting thing is going to be pretty broadly chilling. A woman may not be directly liable, but there’s potential legal exposure aplenty to those around here.

    3. The law does not allow you to sue people for “discussing options.” (Indeed, it expressly carves out a safe haven for speech.) Only for performing or aiding and abetting an abortion.

  9. On the bright side, at least responsible governments can now attack the proliferation of firearms in a meaningful way.

    1. Mike,
      No, no! *Not* governments. Private citizens of those states. No governmental actions at all, once those future laws are enacted. [wink, wink]

  10. Good article, but one thing strikes me as odd “…neither the government nor a private party had taken any steps to enforce SB 8 against them, and it is far from clear that anyone will do so in the future. ”

    It seems abundantly clear to me that hundreds if not thousands of Texan are salivating at the prospect of filing suits under SB 8, either with or without an attorney. The prospect of there being no suits at all is exceedingly small.

    The problem, of course, is that we don’t know precisely who they are, and even if we did under the logic of the majority the justices no court could do anything until the suits were actually filed.

    Seems like a really bad precedent to allow shenanigans like this to move forward. And as Ilya notes, if there aren’t any actual suits to be filed than no one is harmed by enjoining the statute.

  11. Actually, there is precedent for the Texas law. It was the efforts by both government officials and private individuals to litigate the firearms industry into bankruptcy. They were using mostly common-law causes of action – nuisance, primarily – to blame gun manufacturers for making lawful products that some people misused. Activist judges – liberal NY democrats mostly – took the lead in encouraging the suits and keeping them alive.

    The response took some time coming but it took the form of the Protection of Lawful Commerce in Arms Act, a federal statute. You’re familiar with it. It bars most, but not all, suits against firearms manufacturers, save in a few, narrow windows. Joe Biden’s most fervent wish is to repeal it so his friends on the left and in the corporate suites can unleash a flood tide of litigation against the firearms industry and run them out of business. He’s said it more than a few times. Democrats routinely revile it.
    Pledging to repeal it is almost a sine qua non for Democratic candidates seeking nomination. Bloomberg and friends, mostly highfalutin’ corporate types, have pledged lots of money to support lawyers litigating against it and, for that matter, in defiance of it. Trying to get it declared unconstitutional. There was a case, last year I think, where a Pennsylvania trial court did just that, but it’s on appeal and that judgment is stayed.

    IF – big if – the right to abortion is so important and their cause so just, then the Democrats, having control of the Congress and White House, could and should do like the Congress and White House did for the shooting sports and firearms industry: pass a carefully calibrated bill to protect the abortion industry from lawsuits and laws like Texas’ law.

    Frankly, from this libertarian’s perspective, such a law protecting against the Texas-style litigation would be quite acceptable. Just like the Protection of Lawful Commerce in Arms Act is, to protect 2A and, for that matter, the caselaw developed from NY Times v. Sullivan, to protect 1A. The threats to individual liberty never cease, and the threateners have no shortage of inventiveness and guile.

    And before one of the other commentators drools on about death and violence from guns to try to shut down the discussion, consider this: there are in an average year approximately 13,000 to 15,000 non-suicide deaths from firearms, i.e., homicides, accidents, police-involved shootings, everything except that final voluntary act of someone turning off their own lights. In the most recent year for which reliable numbers are available (2018, per the Gutmacher Institute, founded by and later spun off from Planned Parenthood) there were approximately 862,000 abortions performed in the United States. That number has gradually been decreasing since reaching a peak of about 1.5 million in the early-to-mid 80s. Every one of those abortions, from the point of view of the soon-to-be-deceased fetus, was involuntary. So, when it comes to carnage, abortion is about 60 times deadlier than firearms.

    To put it in another perspective, there have been approximately 65 million abortions performed in the US since 1973. The total, all-causes, combined civilian and military, worldwide death toll of World War II was about 70 million. Only, the 65 million abortions performed in the US were from a population of between about 250 million (early 70s) to 330 million (today) – somewhere around 20-25 percent. The worldwide death toll from WWII was spread across a world population of about 2 billion in 1945, about 3.5 percent.

    Looked at it from another perspective, in 2017 the #1 cause of death in the US was heart disease. Per a CBS report last year, in 2017 647,547 died of heart disease. That’s only about 3/4 of those 862,000 abortions.

    Those 862,000 abortions also still well outnumber all the COVID-19 deaths, only the US gets those abortion deaths every year and COVID seems to be something that might come along once every century.

    High price to pay for an unenumerated, unmentioned and arguably made-up right.
    So, when you talk about carnage

    1. So, when you talk about carnage, keep the numbers in perspective..

    2. I was wondering when someone would [correctly] identify private pacifist’s asymmetric lawfare campaigns against the Second Amendment as the proper antecedent to Texas’ SB 8.

      The solution to the fusillade of frivolous lawsuits that attempted to shutdown the legal manufacture of firearms was (and still is) legislative, not judicial. SB 8 will likely require a similar response—to which most law professors are unsurprisingly oblivious.

      There ought to be an easy compromise here that would ensure that this sort of legislation could pass Congress with large bipartisan majorities, especially since Bloomberg et al have reengaged notwithstanding the PLCAA. But I suspect almost every Democrat thinks blocking a legislative fix would be a better electoral tactic.

      I also suspect those Democrats will learn the hard way that they once again badly misread the American electorate.

  12. I’m struggling to see how any of these private attorneys general have standing under Texas law. I fail to see how a private citizen has a “concrete, particularized stake” in whether a wholly unrelated private citizen has an abortion. The statute might give the private attorney general an award and fees, but that’s just a remedy; it doesn’t create an injury.

    While it would take time for standing issues under the statute to work their way through the Texas courts, it seems unlikely that the law would ultimately be enforceable.

    1. Because they’re not created by the Constitution, state courts aren’t bound the case or controversy requirement, and can hear cases where the parties would lack Article III standing.

      1. I agree with that. But Texas law employs its own standing requirement derived from the Texas constitution. That standing doctrine is largely (if not fully) similar to federal standing doctrine, though I’m sure it differs in some respects.

        Point being, Texas standing doctrine requires the plaintiff to show a concrete stake in a controversy. It’s hard to see how a suit under SB 8 would satisfy that requirement as a matter of Texas (not federal) law.

        1. From overhearing it once, I think Texas has pretty much all the same rules of standing as the federal level but it has not adopted Spokeo on the grounds that Spokeo is stupid.

          Which fair enough.

          But yeah that ought to be enough to kill this.

  13. Just be glad you don’t have to deal with California’s Prop 65.

  14. Finally, one of the ilya guys gives us a potential strategy to mitigate chilling effects and threats to constitutional rights.

    All it takes is a lot of capital! If that isn’t a free market approach, nothing else could possibly be one. The person or persons with the most money wins, or at least might have some chance of defending their constitutional rights (or subverting them).

    The strategy of well-heeled ligation is time-tested and as american as some kind of pie. It’s a favorite of patent trolls and reality show celebrities who use the legal system to their desired ends without ever getting to any substantive consideration, by just having “skilled” and expensive attorneys on staff who can bring the opposition to their knees under the weight of all that legal spending.

    The framers and the founders had these ideas in mind during the constitutional convention. They knew that those with the most money would be called upon to both subvert and defend constitutional rights.

    1. Unfortunately that is just the federal constitutional standing requirement (i.e. jurisdiction is limited to “cases and controversies”). The states are free set their own standing requirements. Usually, a state legislature can confer standing on anyone who they want to, subject to their own constitution, and many states allow advisory opinions from the judiciary. In others, objections to standing may be waived if not timely raised.

  15. I’m not sure I see how effective the Texas system is going to be at precluding review. The very first time that someone tries to file one of these suits, the defendant will be free to raise all of the same arguments. For that matter, since anyone can file the suit, I would think Whole Women’s Health could find someone to file one collusively right now, and then have them throw the case. (If it’s really so important to have a lower federal court decide the case first, you could probably structure one of these collusive cases as a declaratory judgment action instead.)

    Or is there something I’m missing?

    1. The problems you’re missing (or maybe getting but blowing past) are that federal courts don’t allow collusive lawsuits and that it would be unethical for the attorneys representing Whole Women’s Health to arrange for a collusive lawsuit.

      1. “The problems you’re missing (or maybe getting but blowing past) are that federal courts don’t allow collusive lawsuits”

        LOL! Maybe you SHOULD quit your day job, that was pretty funny.

    2. You’re missing the fact that doing this would not actually accomplish anything. Such a collusive suit is filed, WWH wins… and? There’s no relevant relief that a court could grant.

      1. Presumably the plaintiff would appeal at that point, then lose again.

      2. Once there was an opinion from either the Texas Supreme Court or the US Supreme Court that the law was unconstitutional, and that therefore the plaintiff (collusive or otherwise) was not entitled to the statutory damages, that would be a binding precedent that would enable abortion providers to do business confidently (the same way that wedding officiants don’t worry about anti-miscegenation statutes in states where they are still on the books, and title insurers don’t worry about racially restrictive covenants). If additional suits were brought, the courts would shortly declare them frivolous, and sanction the plaintiffs, which would shut down the whole matter.

  16. Can I now arrest irresponsible couples like the Santorums that had unprotected sex over 46 years of age when conception can lead to two outcomes—a quick death for the embryo or a baby born with severe birth defects??

    1. It can lead to that at any age. Over 46 the odd are merely elevated. But they’re only a few percent at worst, the more likely outcome is a failure to conceive in the first place.

      1. Nope, failure to conceive is always the most likely outcome at any age. I’m talking about conception—and over 46 the most likely outcome is a quick death for the poor little embryo or severe birth defects. A toddler can run into traffic and die and the parent could have done everything correctly…if the parent is drunk then the parent will most likely be prosecuted…the same standard should apply to embryos. If life begins at conception the parents should not put that embryo in harms way and an over 46 year old egg and uterus are like a parent getting shitfaced while looking after a toddler near a busy street.

        1. “and over 46 the most likely outcome is a quick death for the poor little embryo or severe birth defects.”

          At any age, the most likely outcome is non-conception or a speedy misarrange. But I’ve literally looked at the statistics, and the odds of any sort of birth defect are only a few percent even at advanced age.

          1. ^^^the point in the discourse where Bellmore plays dumb.

  17. Abortion providers might possibly also consider the class action device in connection with the procedural ideas you mention. A provider sued by one bounty hunter can try asking the court to certify a plaintiff class of all potential bounty hunters to be represented by the original plaintiff or plaintiffs. If a provider has found a defendant who has credibly enough threatened to bounty hunt that he or she can be named as a defendant in a declaratory judgment action challenging the law, the provider might considering suing a defendant class of potential bounty hunters with that named bounty hunter as the class representative. I don’t claim that this is certain to work: It’s hard in general (and rarely done) to impose class status on an opposing party, and the “potential” part of the formulation raises some issues. But we’re in terra incognita here so why not give it a go? In the alternative, maybe sue an anti-abortion group as representative of its members broadly construed? And I can’t believe I just typed that given how many of my e-mails over the years ended “associational standing delenda est.”

  18. Just before the section on Injunctions in Story’s Commentaries on Equity, there’s a discussion of a old chancery bill called “Bill of the Peace.” In a situation like this, where the state law gives citizens a cause of action in any county in the state, with injunctive and damages remedies, the sheer diversity of possible plaintiffs and actions might be a case for reviving that old writ. Basically, you’d enjoin all comers against filing any suit that invaded the federal constitutional right. Avoids sovereign immunity, no more sweeping than the modern-day nationwide injunction. Just a thought.

    Mr. D.

  19. Query if exempting private plaintiffs from having to pay legal fees for frivolous suits brought in bad faith violates equal protection, singling out a class of litigants to deny protection against such claims.
    “(i) Notwithstanding any other law, a court may not award costs or attorney’s fees under the Texas Rules of Civil Procedure or any other rule adopted by the supreme court under Section 22.004, Government Code, to a defendant in an action brought under this section.”

  20. This is disgusting to find in even the most tepidly libertarian publication. The movement has become completely unmoored from its radical roots, and is now dominated by establishment lawyers, economists, and bought journalists.

  21. ” If it does not, and Texas’ SB 8 ploy works, it could potentially set a precedent for other state laws circumventing constitutional rights. ”

    Or enforcing them.

    For example, a law entitling private actions — with huge damage awards — against those who engage in voter suppression. Actions against those who engage in bigoted conduct. (Maybe even actions against White, male blogs that regularly publish vile racial slurs?)

    Or just laws advancing good causes. For example, forbidding hunting (discharge of weapons other than in self-defense) on all public lands. Or eliminating corporate liability limitations for environmental offenses.

    How about private actions against substantial tax cheats? Against faith healers? (Often, they would be consolidated actions.)

    This could be great!

    1. Certainly the bigoted conduct would get you in hot water, Artie.

      1. Artie was censored with prejudice by Eugene Volokh for making fun of conservatives a bit too deftly for the professor’s taste.

        (Engaging in viewpoint-driven censorship was and is his right at his blog, even if it makes him a paltry, principle-deprived, disingenuous, faux libertarian hypocrite.)

        I am Arthur. I have been repeatedly censored by the Volokh Conspiracy Board of Censors, but not banned.

  22. I thought it was clear that you can’t do this? At least at a federal level, citizen standing doesn’t work. TransUnion, Spokeo, as well as many other standing decisions make the law unenforceable EVEN IF THE UNDERLYING VIOLATION IS NOT PROTECTED because you cannot delegate that kind of power except under very very special circumstances.

    I understand this is a state, so the rules are somewhat different if it never enters federal court and jurisdiction is somewhat limited.

    But thats always been true? What’s special now?

    All you have to do is, when someone shows up to collect their money, the court will say no. Whats the problem? No, you cannot grant an injection to no one in particular, when when someone does sue someone who has an abortion, they won’t have standing in federal court and any collection under the state level will be enjoined.

    I dont know what the issue is here. Why is there a need to block this now? Everyone seems to agree that when someone actually tries to enforce this they will be prevented from doing so.

    1. I dont know what the issue is here. Why is there a need to block this now? Everyone seems to agree that when someone actually tries to enforce this they will be prevented from doing so.

      The problem is that no doctor in Texas will be willing to perform an abortion. The law creates a four-year statute of limitations on these suits, and does not allow defendants to assert Roe/Casey as a defense, even if Roe/Casey are the law of the land at the time of the abortion, if they have since been overturned.

      I can perform a constitutionally protected abortion now (I mean, if I were a doctor), and then if SCOTUS overturns Roe in 2 years, someone can come along and sue me then.

  23. IANAL, but I think precedent was set by the Clean Water Act, which allowed citizens to sue alleged violators.

  24. The hand-wringing of abortion enthusiasts is overwrought.

    You cannot have judicial review until there is a judicial proceeding, which you will have the moment someone brings a lawsuit under the act in a court, as it would be under any of your hypothetical enactments.

  25. I saw some earnest pro choice advocate today. He said that the “religious right” was “acting in bad faith”.

    I thought–looking at the provisions of the Texas law–“Well golleee! It looks like somebody on the right finally learned how to play lawfare.”

    I think that the Texas law will not be the main action in the abortion rights battle–but it is an interesting skirmish.

  26. What’s to stop from making an identical law against interracial marriage, or christian beliefs? How would those laws be tenable?

    1. The obvious difference is that those are real constitutional rights, and abortion is a fake constitutional right.

      And we’re never going to pretend otherwise, unless the pro-‘choice’ movement manages to amend the Constitution.

      1. For a “real” right, where does the law prove untenable?

        1. My presumption is that real rights are substantially less likely to be struck down by the Supreme court in the future, than fictional rights with no textual or historical grounding that the Court pulled out of its ass, and which have been under sustained attack ever since.

          The real bite of this law comes from the genuine prospect of Roe being overturned, after all. If everybody knew that wasn’t going to happen, nobody would be afraid to take the risk of violating it.

          1. You provided no criteria to cite against such laws against “real” rights. Think of the framework of this law, and swap abortion for your most real and cherished right. Explain how that hypothetical law or its enforcement are unconstitutional.

            1. I don’t see why I should repeat the text you just refused to read.

              1. You shouldn’t because your text didn’t explain why you can’t do this with “real” rights too. You would need to write up some new text with an explanation.

      2. Here’s Brent the fascist, coming in with another mind numbingly dumb take.

  27. I have previously summarized my objections to current “standing” rules, which are not actually required by anything in the text or original meaning of the Constitution

    If we accept the validity of Supreme Court precedents that are not actually grounded by anything in the text or original meaning of the Constitution, then the ruling here was entirely correct.

    If we reject the validity of Supreme Court precedents that are not actually grounded by anything in the text or original meaning of the Constitution, then just the outcome here was correct, the correct grounds being that there’s no right to abortion to protect with an injunction.

    1. This case really has nothing to do with standing. You don’t sue a law. You sue people. You can’t get an “injunction” against a law; you get an injunction against people, for example, enjoining them from enforcing a law.

      The plaintiffs chose the defendants here, defendants with no responsibility for enforcing this law. The plaintiffs chose the course and conduct of litigation. I’m not even sure exactly what they were asking the court to do. Grant an injunction against people not named in their lawsuit? The dissenting justices propose to grant relief with no precedent in history as if they were some free-standing dispensers of “justice” unrestrained by any rules or limits. I frankly don’t see that the Court had any choice but to do what it did.

  28. I agree that there should be some relief available here, but overruling existing precedent without argument or briefing is not good practice. Let a lower court grab some creative argument, or reject one, while another court responds differently or similarly. It will eventually get to SCOTUS, which can then work in a more deliberative manner.
    But it seems that chilling effects can work both ways. My knowledge of Section 1983 is about 30 years stale, but it seems that someone seeking to enforce this law is operating under color of State law and may open themselves to a creative approach to 1983 litigation.

  29. or we could, y’know, finally admit that States have the power to define what willful or negligent losses of human life constitute crimes and thus merit State punishment, and that the Federal government does not.

    We’re here because we made a wrong turn back there.

  30. plaintiffs can only bring cases in federal court if they have suffered an actual or imminent “injury.” Here, arguably, there was no such injury because neither the government nor a private party had taken any steps to enforce SB 8 against them,

    Common sense says this is bizarre here.

    If a woman in Texas can’t get an abortion because of the chilling effect of this law, then surely she has suffered an injury. Yet somehow our erudite professors and the court can’t see that, or don’t want to.

  31. As Josh Blackman noted it is incorrect to say that the Texas law is unconstitutional … it is unconstitutional under certain conditions which cannot be met. “Opponents of S.B. 8 should not say that “S.B. 8 is unconstitutional.” That statement is a non-sequitur. The correct statement is that “S.B. 8 is unconstitutional in a specific context.” Given the law’s intricate severability provision, a facial challenge is virtually impossible.”

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