The Volokh Conspiracy

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Profs. Howard M. Wasserman & Charles W. "Rocky" Rhodes Guest-Blogging About "Solving the Procedural Puzzles of Texas' Fetal-Heartbeat Law"


I'm delighted to report that Profs. Howard M. Wasserman (FIU) and Charles W. "Rocky" Rhodes (South Texas College of Law), both of whom specialize in procedure and in what lawyers label "fed courts" (the rules related to, among other things, federal courts' jurisdiction and power), will be guest-blogging starting today about their new article, "Solving the Procedural Puzzles of Texas' Fetal-Heartbeat Law." Here is the abstract:

The Texas Fetal-Heartbeat Law enacted in 2021 as Senate Bill 8 prohibits abortions after detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by "any person." Texas employed this enforcement mechanism to impose potentially crippling financial liability on abortion providers and advocates and to stymie their ability to challenge the law's constitutional validity through offensive litigation in federal court to enjoin enforcement of the law. Texas lawmakers sought to confine abortion providers and advocates to a defensive litigation posture in state court.

This article works through the procedural and jurisdictional obstacles that SB8 creates for abortion providers and abortion-rights advocates seeking to challenge the constitutional validity of the fetal-heartbeat ban. While Texas has created a jurisdictional and procedural morass, the law does not achieve the ultimate objectives. Providers and advocates can litigate in federal court, although it requires creativity as to timing and proper litigation targets. They also should find greater success defending in state court than legislators expected or hoped. Other avenues remain to vindicate the rights of abortion providers and advocates—and the pregnant patients they serve–that accord with the traditional operation of and limitations upon the federal and state judiciaries in adjudicating constitutional rights.