The Procedural Puzzles of SB8, Part I: Litigating Constitutional Rights

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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.

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

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  1. Quite a helpful article and I look forward to the rest! However, I fail to see how saying “all lives matter” could possibly be considered racially derogatory or discriminatory. I know it’s just a hypothetical example, but it muddies the waters considerably, I think.

    Saying something like “white people are born evil” would be a much better example.

    1. In itself, the phrase is not those things.

      But someone could trivially show a court that “Many People Consider This Phrase Code For White Supremacy And That Black People Don’t Matter”.

      (Because many people do, in fact, believe exactly that, as I assume most of us have seen.

      That this has nothing to do with the text, and little to do with how many, many people have used the phrase means nothing at all, for the matter of “a court deciding you get fined for it”.)

      1. But someone could trivially show a court that “Many People Consider This Phrase Code For White Supremacy And That Black People Don’t Matter”.

        (Because many people do, in fact, believe exactly that, as I assume most of us have seen.

        No, no one is actually stupid enough to believe that. What they are is dishonest enough to claim that not joining in with their racist bigotry of defining people as “Black lives” and “White Lives” (as opposed to “human lives”) is the “true racism”.

        Because they’re garbage human beings and total racists.

        “Many people” believe in Astrology.

        That doesn’t empower the courts to sentence you based on your astrological sign

      2. But someone could trivially show a court that “Many People Consider This Phrase Code For White Supremacy And That Black People Don’t Matter”.

        Sure. And in the same way, for the same reasons, it would be trivial to show that many people consider “Black Lives Matter” to be a racially derogatory slogan meaning that white people (and yellow people) not only don’t matter, but are all guilty of egging on the police to murder as many innocent black folk as can be caught. And this second “many” would have the advantage, as against the first “many” , of literal meaning, in addition to anything that might be inferred.

        So our daring duo’s hypothetical “anti-racism” statute looks set fair to get pretty much everybody into court both as plaintiff and defendant.

        However, my feeling is that the duo tossed in the reference to “All Lives Matter” being racist as, to borrow their distinction, defensive rather than offensive, virtue signalling.

        Offering a thoughtful article that fails instantly to pronounce the death penalty on Texas and all its works, exposes our timorous duo to a hail of projectile vomit from the offense-taking classes. So they’ve just chucked in a casual accusation of racism against folk who think all lives do matter, by way of a defense.

        It won’t save them. Neither the abortion lobby nor the race baiting brotherhood have any time for the faint hearted.

    2. What people say is offensive is becoming increasing divorced from reality. Employees and schoolchildren are being taught that striving for colorblindness and thinking that there’s just one race, the human race, is white supremacist.

  2. This is so much thought experimentation that it must be fun for a law professor. Bottom line, though, courts will do what they want based on their preferred policy outcome and backwash the legal reasoning to fit. This includes expanding “standing”.

  3. So the price of an abortion goes up by $10,000.00.
    With all the bleeding heart liberals chock full of money somehow, they can just set up private charities to cover the few extra bucks for a lot less than all this constitutional wrangling.

    1. Less than that, all you have to do is drive to a neighboring state. We are talking the price of gas money, maybe a hotel room.

      1. People keep assuring me that the law can apply to even ‘leaving Texas to do it”, because the “aiding” happened in Texas.

        I have, however, little confidence that the text of the law actually supports that.

        (Equally, people are “sure” on Facebook that even saying, as a non-Texan, that you’ll help a Texan with that, makes you “liable to be sued!!!”, but again, not at all sure that’s actually in the text at all.

        That would be plainly unconstitutional, I think, in that states cannot criminalize or penalize behavior that does not happen in their state.)

        1. That would be plainly unconstitutional, I think, in that states cannot criminalize or penalize behavior that does not happen in their state.)

          Agreed on the general principle. But I’m struggling to come up with a practical example of a way an out-of-stater could render assistance in support of an in-state abortion that could not be said to have happened at least in part inside the state. Maybe if the mother left the state, received the assistance out of state, and then came back in state for the abortion, but then presumably she could have stayed out of state for the abortion and circumvented the whole situation, per your first point.

          1. Mother drives herself out of the State so she can kill her baby
            Person out of State pays for the abortion
            No longer mother drives herself back to TX

            Now, let’s turn it around

            Girl drives herself out of the State, to a State with a lower age of consent
            Meets guy there, who pays for everything while she’s there, including the hotel room where they have sex
            Girl drives herself back home

            Has the guy violated any laws? My intuition says “yes”, but I can’t give a harder answer than that

      2. This is Texas. As someone who’s driven across the state twice, that can mean at least one hotel room within the state and a lot of gas just to get across the border. Going East, you hit a bunch of red states. North, you hit another red state but if you keep going you reach Colorado. East is New Mexico, a moderately blue state. And South is Mexico, which if you’re careful or speak Spanish fluently, might also be a good option.

        You could also just find a way to order abortion medication. I suppose someone could sue your local mailman for delivering it, the internet service provider for making it possible to order it, your credit card company, etc.

    2. People usually get chock-full of money because they are smarter, better-educated, superior workers in regions with vibrant, multi-industry economies that result in fierce competition for high-paying jobs. That’s called capitalism and it is a good thing.

      Why are liberals chock-full of money? You tell me.

  4. “The statute prohibits any state or local government or government official from enforcing the law through criminal, civil, or administrative mechanisms.”

    How exactly does the winning plaintiff collect their ten grand, if not with the assistance of the state or local government?

    1. Enforcing the court decision on a case by collecting a payment is not “enforcing the law” itself.

      1. I’d like to see you make that case in front of a pro-choice judge. Or any judge who wasn’t going out of his way to shield the law from review.

    2. Best guess: If your Starbucks barista hears you talking about driving your sister to a clinic for an abortion, they can either sue you themselves or, more likely, turn you in to an anti-abortion organization with nationwide funding to initiate the lawsuit. The person(s) who aided the abortion would be required by the court to pay up using the normal mechanisms courts use to ensure defendants pay judgements.

      If you’re efficient enough at filing and winning these lawsuits, I wonder if the $10K bounty would provide sufficient profit to create a bounty-hunting business?

      1. “The person(s) who aided the abortion would be required by the court to pay up using the normal mechanisms courts use to ensure defendants pay judgements.”

        Right, which require agents of the state to enforce. Exactly my point: If the state stays out of enforcement entirely, why do you have to worry about the judgment? Isn’t even the judge an agent of the state?

  5. An article offering advice on “what abortion providers and reproductive-rights activists can do”?

    May I suggest a more suitable place to publish this article, other than the American University Law Review?

    http://feministstudies.org/home.html

  6. 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)

    You are sick and twisted monsters.

    Thank you for establishing that you have nothing of value or wirth to say

  7. This law supports my point. Liability shrinks an activity. Immunity grows it. The lawyer is engaged in unauthorized industrial policy without a rationality or utilitarian analysis. That industrial policy is unAmerican Commie failed ideology.

    In the case, of this law, I object to the forced birthing of thousands of Democrats and all their social pathologies each year.

    1. This vigilante liability has shut down the activity. You lawyer fucks did the same to our manufacturing base. You fucks deter 40% of business formation, between permits, liability, regulation. You have to be stopped to save our nation.

      All self dealt legal immunities must be totally ended, judge, legislative, executive. We want to shrink and to get rid of your stinking, toxic profession. You are 10 times more toxic than organized crime. Any individual should be able to sue any lawyer, including the toxic fucks on the bench and in the legislatures. Make all the scumbags pay from personal assets, not from taxpayer funds. They are the evil enemy, destroying our country.

      1. This in the interest of the lawyer. Immunity fully justifies violence in formal logic. Formal logic has more certainty than the laws of physics. Open the liability of this scumbag profession or start their eradication. You can decide, scumbags.

  8. Texas has attempted to “to strip its own citizens of the ability to invoke the power of the federal courts to vindicate their rights.”

    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.

    Suppose we muddy the waters by bringing in qualified immunity.

    After all, IT’s Short Circuit blog gives us examples over and over where people enforce invalid or nonexistent laws, but who are granted QI. States could defy all federal authority and claim QI.

    I won’t hold my breath, but it seems like a way to attack both SB8 and QI at the same time.

    1. Anything that could help get rid of Qualified Immunity would be awesome. Lack of accountability in government officials is a terrible thing.

    2. Qualified immunity does not apply to pre-enforcement suits seeking injunctive relief to stop enforcement of the law.

    3. I guess it’s possible to imagine a less accurate description of qualified immunity, but it’s not easy.

      1. Out of curiosity, what is inaccurate about?

        1. Not you, the other guy.

  9. Rhodes is at South Texas College of Law. I think this article qualifies as “aids-or-abets an unlawful abortion”.

    1. It has to be a specific illegal abortion.

      The blather that Uber drivers bringing women to abortion clinics is just so. The Uber driver has no reasonable way of knowing that the passenger wants an abortion [rather than birth control or a Pap smear] or that said abortion is outside the six week window.

      -dk

      1. Re: the six week window.

        Since most women do not know they’re pregnant at 6 weeks, the likelihood of a woman seeking an abortion before then seems low. Which means you can just assume it’s over 6 weeks when you initiate your lawsuit. If a nationwide anti-choice group is doing the suing, they’ll have enough cash to ruin the Uber driver just through the act of suing without having to win to do it. That alone would make drivers less willing to bring someone to a clinic where they might be breaking the law.

        1. According to the stats I’ve seen, that would be about 15% of abortions.

    2. Rhodes is at South Texas College of Law. I think this article qualifies as “aids-or-abets an unlawful abortion”.

      The law expressly excludes first amendment protected activity from its ambit.

  10. The identification of Professor Wasserman omits “International” with respect to his school.

    The identification of Professor Rhodes omits entirely the downscale institution at which he teaches.

    1. The identification of Professor Rhodes omits entirely the downscale institution at which he teaches.

      Well, I’d be trying to keep it quiet myself.

  11. Nice Article.!
    I read your article. Its really good..

  12. “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 doesn’t seem like the best analogy since SB8 does not directly target the woman seeking to obtain an abortion. Rather, it indirectly targets the rights-holder by creating a liability risk for individuals who are needed for the rights-holder to exercise the right. Its more a clever approach to “if you can’t ban guns, then just ban all the bullets.” Since that approach isn’t allowed, since it prevents the rights-holder from exercising the right (and is enforced by the state) then you attach civil liability to the secondary individuals that are needed for the right-rights holder to exercise the right.

    Using those components, an analogy would identify a constitutionally-recognized right and then attach civil liability individuals who assist the rights-holders in exercising the right. A similar law might be used to allow private citizens to sue anyone who knowingly assists another person in obtaining a firearm; knowingly assists an African American in voting; or knowingly assists another individual in religious worship.

    If you cannot ban the behavior in question because it is a recognized right, and you cannot directly ban that which is necessary for the rights-holder to exercise the right, then the next step is to attach civil liability to the individuals who provide what is necessary for the rights-holder to exercise the right.

  13. For anyone here concerned about women’s rights, don’t read the authors’ full paper. It ain’t looking too good

    1. Trying to translate the Orwellian terminology…”women’s rights” is usually a euphemism for aborting both male *and female* fetuses.

      So if “women’s rights” – defined Orwell-style – are in danger, that means unborn babies (of *both* sexes) are safer.

  14. But if a claim is properly filed in a Texas county court, and a deft removes under diversity, you would seem to have Federal review under the statute simpliciter. Rather quickly. Or perhaps I’m missing something.

    Mr. D.

    1. 1) The plaintiffs and likely defendants (doctors, nurses, clinic owners) are all likely to be from Texas. Or a Texas plaintiff pursuing a non-Texan can make sure to include just one Texas defendant to keep the case in state court.
      2) There is no standing in federal court because the plaintiff may not have a personal injury. So even if there is diversity, the lack of standing means the case is not removable.

      1. Not to mention the amount in controversy issue.

        1. But a suit alleging eight instances (or six or seven, depending on the Lone Star lodestar) against a clinic with principal place of business in Dubuque would still seem to be removable. I might be wrong on this, but there seems to be sufficient Article III injury, as we’re a bit beyond wanting to look at a rare species, so it’s a matter of prudential standing. But I’m sure there’s law that I don’t know on prudential standing when removing qui tam suits.

          Mr. D.

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