The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Pre-enforcement challenges to S.B. 8 have failed. And due to S.B. 8's unique structure, I think facial challenges will also fail–whether brought by abortion providers or the United States. Perhaps the only way to test the constitutionality of S.B. 8 is to set up a real test case. Old school style. Deliberately violate the law, and wait to be sued. At that point, the constitutionality of S.B. 8–in that particular context at least–can be tested.
There is some precedent for this practice. In 1961, the Connecticut Birth Control League opened a Planned Parenthood clinic in New Haven. The organization wanted to start a test case as a means to challenge the state's contraception law. Estelle Griswold was the executive director of the League. Dr. C. Lee Buxton, the chairman of the Yale University Department of Obstetrics and Gynecology, was the medical director of the clinic. Griswold and Buxton counseled married couples on the use of contraception, a clear violation of Connecticut law. They did so deliberately, so they would be arrested. Griswold and Buxton were each fined $100. Of course, this staged-arrest set up the test case that became Griswold v. Connecticut. Indeed, Griswold became necessary after the Supreme Court decided Poe v. Ullman. That case turned away a facial challenge to the contraception ban that the government did not actually enforce the law. There is nothing new under the sun.
At some point, some abortion provider will try to set up a test case to challenge S.B. 8. Who will be the Estelle Griswold of Texas?
Of course, due to the structure of S.B. 8, a victory of Estelle #1 would not help Estelles #2, 3, 4 … n.