The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Thanks to Eugene for inviting us to blog about Texas's fetal-heartbeat law (SB8) and our article, which will be published in American University Law Review in January. The paper explores the statute's procedural rules and what abortion providers and reproductive-rights activists can do to challenge the law's constitutional validity. We began the project in June, when Texas enacted the law, and have been trying to keep up with fast-moving events. This post and the ones to follow highlight various pieces the paper and the procedural puzzles that rights-holders are trying to solve.
At its core, SB8 does several things. The core substantive provision prohibits abortions after a fetal heartbeat was or could be detected (usually at around 5-6 weeks of pregnancy); that prohibition violates current Supreme Court precedent, which prohibits states from banning pre-viability abortions. It also prohibits aiding-and-abetting a prohibited abortion. The statute prohibits any state or local government or government official from enforcing the law through criminal, civil, or administrative mechanisms. Instead, it creates a private cause of action for "any person"—regardless of injury or connection to any unlawful abortion—to sue anyone who performs or aids-or-abets an unlawful abortion; remedies include statutory damages of at least $ 10,000 per unlawful abortion, injunctive relief, and attorney's fees. The statute then limits or manipulates the cause of action in various ways, including statewide residence venue (meaning a plaintiff from East Dillon can sue there over an abortion performed in Austin) and limits on available defenses.
The rhetoric around SB8 has hit a common refrain: The law and the Supreme Court's order have immunized this "clearly unconstitutional law" from judicial review. Providers and advocates are worried that it is impossible to obtain a court determination on SB8's constitutional validity. The lawsuit DOJ filed against Texas reflected this refrain, complaining that SB8 has thwarted "traditional mechanisms of federal judicial review" and that Texas has attempted to "to strip its own citizens of the ability to invoke the power of the federal courts to vindicate their rights."
SB8 does not prevent courts, including the Supreme Court, from deciding the constitutional validity of the fetal-heartbeat ban, even without the DOJ lawsuit. Rather, it channels review into a different context. Private constitutional litigation takes two forms—offensive or defensive.
In an offensive posture, rights-holders threatened with enforcement of a constitutionally invalid law sue the government official responsible for enforcing that law, asking the court to declare the law invalid and to enjoin the official from enforcing the law against them. Most abortion-rights litigation takes this form. A state enacts a restriction on abortion, a provider (such as Texas-based Whole Women's Health) sues an executive official (such as the head of the state department of health services), and a court, agreeing the law is invalid, enjoins the official from enforcing that law against the provider. Rights-holders prefer this posture—it enables them to control the timing of litigation, litigate in federal court, and obtain a judicial determination of their constitutional rights without having to violate the law or risk being subject to liability.
But offensive litigation in federal court is limited in one important way—the plaintiff rights-holders must have standing, meaning they suffer an ongoing injury fairly traceable to the defendant and redressable by the court. In a pre-enforcement context, that means showing an imminent threat of enforcement because the plaintiff intends to engage in constitutionally-protected-but-statutorily proscribed activity, such that the statute will be enforced against her. SB8 intentionally eliminates this option. Because no government official (such as the attorney general or head of health services) is responsible for enforcing the ban on post-heartbeat abortion, there is no government official to sue or to enjoin from enforcement.
In a defensive posture, rights-holders violate the law by engaging in the prohibited activity, get sued, and raise the constitutional invalidity of the law as a defense, arguing that they cannot be liable under a constitutionally invalid law; if successful, the court in the enforcement action dismisses the suit or enters judgment in favor of the rights-holder defendant. Where the enforcement suit occurs in state court, the rights-holder defendant appeals any adverse judgment through the state courts and to the Supreme Court of the United States. SB8 forces abortion providers and advocates into a defensive posture—violate the law, get sued, and raise the Constitution as a defense. The disadvantage to defensive litigation is that the rights-holder must violate the law and risk liability and, under SB8, crippling financial burdens.
The rhetoric around SB8's procedural reality, as reflected in the rhetoric of DOJ's complaint, reveals the new expectation that rights-holders are entitled to litigate their constitutional rights in a federal district court at the outset. Historically, however, offensive litigation was not deemed constitutionally preferable. The number of offensive constitutional challenges in federal court did not exceed the number of defensive challenges until the late 1970s.
Major constitutional issues arise and can be resolved in defensive postures akin to what SB8 creates. Consider three.
The obvious example involves tort claims—such as defamation or intentional infliction of emotional distress—that may implicate the First Amendment. The injured private individual sues and the speaker defends on the ground that his speech was protected and cannot be the basis for liability. New York Times v. Sullivan, perhaps the Court's most important free-speech case, arose in this posture. The Times published an editorial advertisement describing alleged police misconduct in responding to civil rights protests in Montgomery. State and local officials filed five defamation lawsuits in Alabama state court, seeking a total of $ 3 million. This was part of nearly $ 300 million in defamation judgments and settlements entered by Southern courts against civil-rights activists and northern media reporting on Jim Crow abuses, part of an orchestrated campaign to use defamation law to silence critics. Only after publishing critical speech, defending the lawsuit in state court, and appealing the adverse judgment through the Alabama judiciary did The Times prevail before the Supreme Court on its free-speech arguments.
We also hypothesize a starker example with a sharper parallel to SB8. Imagine a state wants to eliminate public displays and expressions of racial inequality by creating a private tort action for "any person" offended or bothered by the expression of a racially derogatory or discriminatory idea; remedies include statutory damages of $ 10,000 per expression and an injunction requiring removal of the offensive racist message. This law violates the freedom of speech as judicially interpreted (which protects racist and racially offensive rhetoric outside some narrow categories) to the same degree that SB8 violates the right to reproductive freedom. The point of both laws is to sue rights-holders into silence or bankruptcy for engaging in constitutionally protected but socially disfavored activity. A would-be speaker with a racially offensive message (e.g., a person who intends to post an "All Lives Matter" sign on her lawn) stands in the same position as abortion providers and advocates seeking to help women after detection of a fetal heartbeat. The speaker cannot bring an offensive action to declare the law invalid or stop its enforcement, as there is no responsible officer to sue and no one for the court to enjoin. The speaker must continue to present her racist message, get sued by a random offended person, and raise the First Amendment as a defense to tort liability. Or the speaker will refrain from posting the sign for fear of suit and liability.
The distinct frameworks of constitutional litigation is essential for understanding SB8 and how rights-holders can litigate these constitutional issues. In the next few days, we will examine offensive and defensive options, as well as the prospects for the federal government's suit. Our basic conclusion is that rights-holders can privately challenge SB8, although it will take more time, impose greater burdens and costs, and require different strategies. But this different posture is neither unusual nor cause for surrender.