The Procedural Puzzles of SB8, Part II: Failing Offensive Litigation

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Our first post described the two ways a rights-holder litigates federal constitutional rights—offensively, by seeking from a federal court a declaratory judgment of invalidity and an injunction to stop enforcement of the challenged law, and defensively, by raising the constitutional invalidity of the enforced law as a defense in the enforcement proceeding. Major constitutional decisions have arisen in both contexts.

The procedural controversy surrounding SB8 pits the legislative goal of stopping offensive litigation and channeling litigation into a defensive posture against abortion providers' desire to pursue offensive litigation in federal court. The latter explains why a collection of providers, medical personnel, and reproductive-rights advocates pushed an offensive suit. The former explains why that suit stands in limbo and appears unlikely to succeed. After the district court denied motions to dismiss, a divided Supreme Court declined to enjoin the law pending appeal, and the Fifth Circuit refused to dismiss appeals for lack of jurisdiction and stayed district court proceedings. Whatever one believes about the constitutional validity or policy wisdom of a prohibition on post-heartbeat abortions, the court was correct that the lawsuit cannot work procedurally.

Who did providers and advocates try to sue and why did it fail?

State Officials and Direct Enforcement

Offensive litigation typically targets the responsible executive official—the executive-branch official charged with enforcing the challenged law—for an injunction prohibiting him from enforcing the law against the plaintiff. That often is the governor or attorney general for criminal laws. Challenges to Texas abortion restrictions typically run against the Commissioner of the Department of Health Services (John Hellerstedt of Whole Women's Health v. Hellerstedt fame).

SB8 eliminates that option. By disclaiming enforcement by any state or local government or official, the law leaves no one to sue. There is no "responsible executive officer" charged with enforcing SB8 to name as defendant. And there is no one for the court to enjoin; the court cannot redress a constitutional violation (enforcement of the invalid law by the defendant officer) by enjoining an officer who lacks power to enforce the invalid law and thus to cause the constitutional violation.

This flows from SCOTUS's 2021 decision in California v. Texas. The Court held the plaintiffs lacked standing to challenge the Affordable Care Act's individual mandate as amended to include a $ 0 penalty. The provision was unenforceable, because no government official can enforce the mandate or injure the plaintiffs by collecting a $ 0 penalty. It is legally and practically impossible to collect a $ 0 penalty. SB8 mirrors that situation. While it is legally and practically possible to enforce the ban by suing to stop or sanction post-heartbeat abortions, no state official has the power to do so.

State Officials and Indirect Enforcement

The WWH complaint attempted to avoid this problem on a theory of "indirect enforcement" by state officials and agencies such as the state medical, nursing, and pharmacy boards. State laws and regulations require doctors, nurses, clinics, and other providers of medical care to abide by all health-and-safety laws, including SB8. A clinic or doctor might incur an administrative or licensure sanction for performing a post-heartbeat abortion, because the violation of SB8 is a predicate for a regulatory violation.

This approach encounters two problems. It works only if SB8's statutory prohibition on government "enforcement" includes this type of indirect enforcement. The Fifth Circuit interpreted SB8 to prohibit all government enforcement, direct or indirect, an interpretation fatal to this theory.

If accepted, it provides limited relief. Successful litigation would enjoin the medical board from using a WWH doctor's performance of a post-heartbeat abortion as a predicate for revoking that doctor's medical license. But that injunction cannot protect abortion-rights advocates, who are not regulated by those agencies or officials, suffer no injury at the hands of those agencies or officials, and receive no relief from an injunction prohibiting those agencies or officials from acting against others. The injunction also cannot stop individual "any persons" from directly enforcing SB8 by initiating private litigation.

Litigation against the medical board might have established precedent establishing SB8's invalidity that could guide or bind future private enforcement actions. But it would not stop those lawsuits or relieve providers and advocates of the obligation to litigate the later actions, their goal in the offensive litigation.

Judges and Court Clerks

The most creative—and most doomed—approach asserted claims against state judges and state clerks of court; they asked the federal court to enjoin clerks from accepting SB8 suits and judges from adjudicating those suits. This injunction would stop private enforcement—if clerks cannot accept the lawsuits and judges cannot adjudicate them, private plaintiffs are practically, if not legally, prevented from enforcing the law.

The Fifth Circuit labeled this theory "specious," an accurate characterization. Clerks do not enforce laws; they perform a ministerial function of accepting and filing lawsuits, without reviewing or analyzing their content (Texas law prohibits clerks from doing so). Judges do not enforce laws; they adjudicate disputes between parties attempting to enforce laws. Judges are not adverse to the enforcement targets (as are executive officials), but act as neutral decisionmakers to resolve an enforcement action between adverse parties. Moreover, state judges have jurisdiction to decide federal constitutional issues such as the validity of the fetal-heartbeat ban, are bound by SCOTUS precedent such as Roe and Casey, and under the presumption of "parity" are as capable and willing to vindicate constitutional rights. It makes no sense to deprive them of the opportunity to perform their judicial functions.

Judges have never been appropriate defendants in offensive actions challenging the constitutional validity of laws and seeking to enjoin enforcement. In recognizing the possibility of offensive actions, Ex parte Young stated that the power to enjoin executive officials "does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature." A court's judgment does not cause the constitutional injury—when a state-court judgment infringes on federal constitutional rights, federal district courts lack jurisdiction and the adversely affected party must appeal the judgment through the state judiciary before seeking SCOTUS review. It follows that a federal court cannot deprive the state judge of any opportunity to issue a judgment.

This theory also would be limitless. If it worked, any media outlet threatened with or subject to a state-court defamation action could sue the state judge in federal court, asking the federal court to declare that the speech is constitutionally protected and to enjoin the state judge from adjudicating the defamation suit. Plaintiffs do not attempt this, and no cases have allowed the strategy.

This exhausts the pool of governmental targets. It does not exhaust the potential for offensive litigation. There is one final option, although it entails a welter of considerations—the private individuals authorized by SB8 to bring suit. We turn to that in our next post.

NEXT: An NFIB Counterfactual: What if the Obamacare Individual Mandate Were Enforced By Employers?

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  1. Taking all these arguments by Wasserman and Rhodes as correct—for the sake of argument—they do not seem to touch what may be the best argument against S.B. 8. Article IV of the U.S. Constitution decrees a republican form of government for every state. S.B. 8 thwarts that guarantee on purpose.

    By prohibiting enforcement by state officials, S.B. 8 intends to make its prescribed method of enforcement unaccountable as a matter of politics (because enforcers under S.B. 8 neither hold nor seek political office, and may even, in the cases of out-of-state enforcers be ineligible for it), and unaccountable as a matter of practical judicial procedure. Unaccountable law enforcement is not permissible under a republican form of government.

    As to procedures and parties, forget the precedents. In this case, the offended party is not the U.S. government. The offended party is the sovereign People of the United States. It is their decree that state governments must have a republican form. That is not a requirement arrived at by government action, but by sovereign power. The government of the United States owes allegiance to its sovereign. Officers of the U.S. government have sworn oaths to uphold the Constitution. By doing so, they have taken on the responsibility to defend both the sovereign’s decree, and the sovereign’s power. It is the job of those sworn officers to defend and guard jealously the sovereign’s decree of a republican form of government in Texas.

    Those sworn officers include both the executive officers who bring the suit, and the judicial officers who will decide the case. An extraordinary feature of this case is that judicial officers who hear it are not at liberty, because of their oath to the sovereign, to decide the case in any way except against Texas, unless Texas can show that S.B. 8 is consistent with the republican form of government which the sovereign decreed.

    That should be the sole permissible ground for deciding the case for Texas. Failing that, Texas should lose, and S.B. 8 should be declared facially unconstitutional, entitling any defendant named under S.B. 8 to an immediate dismissal of all charges on no other grounds except that S.B 8 is void.

    None of that should have anything to do with any question relating to abortion. Whether Roe stands or falls, S.B. 8 should be doomed as a violation of Article IV.

    1. “Unaccountable law enforcement is not permissible under a republican form of government.”

      That’s fair enough. Good-bye to qualified immunity and cop unions.

      In this particular case, of course, the suits are heard by judges, who are elected by the people. If the judges abuse their power (eg, by condemning unborn human beings to death – oops, I forgot this isn’t about abortion), the people can vote them out. (And that’s even before we get to the question whether a republican government requires elected judges).

      As for private enforcement of the law, what happened to the good old qui tam action? Does that violate republican government, too?

      1. Cal, I will let legal experts correct me if I make a mistake here. My impression has been that law enforcement responsibilities and judicial responsibilities are not related.

        As for private enforcement under qui tam, I am not able to provide an answer. I do not know enough. Perhaps there are implications there. Are there laws which say that method of enforcement supersedes all other law enforcement?

          1. To put it bluntly: Private parties can sue to protect the U. S. treasury.

            So why can’t private parties sue to protect the unborn?

    2. There are two problems with this argument.

      The first is that this is a substantive argument against the law, which doesn’t do anything to solve the procedural obstacles that these posts are about. And if you can get to the point of making a substantive argument, it seems like “the U.S. Supreme Court has said that a state can’t do this” is, in fact, a better argument.

      The second problem is that the substantive argument is wrong. You still have not cited to any authority beyond your own ipse dixit to show that a republic can’t enforce its laws in this fashion without ceasing to be a republic. Nor have you explained how to reconcile this claim with the fact that, at the time the constitution was written, every state in the union relied on precisely this kind of private enforcement as its primary means of administering criminal justice.

      1. The first is that this is a substantive argument against the law, which doesn’t do anything to solve the procedural obstacles that these posts are about.

        Noscitur, maybe you missed the point. Can you detail which procedural obstacles you think remain after recognizing that the issue is a test of sovereign power, given that sovereign power is defined as unconstrained by anything? I don’t think that works.

        I suggest you face the daunting task of winning an argument that the Article IV decree guaranteeing a republican form of government is not in fact a sovereign decree. I do not think I need to do any work at all against an absurd claim that you can have a republican form of government which includes law enforcement powers without any political accountability.

        Otherwise, I am baffled by your assertion that every state relied on precisely this kind of enforcement. To convince me, you will need to cite text from antique laws which explicitly bar any but private enforcement, and then show that government enforcement actually was barred in practice. I never heard of such a thing. But no doubt there are far more things I haven’t heard of, so maybe you can show I am mistaken.

        1. I think you have the question wrong.

          The existence of *any* private enforcement at the Founding, even if the executive had concurrent authority, would negate your case. In fact, it would make your case worse if there were *already* executive officials able to go to court but private parties ably to bypass those officials and second-guess their decision not to prosecute.

        2. Can you detail which procedural obstacles you think remain after recognizing that the issue is a test of sovereign power, given that sovereign power is defined as unconstrained by anything? I don’t think that works.

          So you think that by claiming to be executing “sovereign power”, a federal judge can ignore Article III’s limits on judicial power-—limits which, after all, were also placed there by the same sovereign people who endowed that judicial power in the first place?

          Can you give a single instance in American history where a judge has done so?

          I do not think I need to do any work at all against an absurd claim that you can have a republican form of government

          Again, every state at the time of the founding allowed private criminal prosecutions. Are you seriously claiming that 1. not a single state had a republican government when the constitution was ratified and 2. no one in the federal government, many of who, were responsible for drafting and ratifying that very clause, so much as lifted a finger to try to enforce that guarantee?

          If so, I’d invite you to offer something beyond question-begging to support it.

          1. Please answer the question I asked: Can you detail which procedural obstacles you think remain after recognizing that the issue is a test of sovereign power, given that sovereign power is defined as unconstrained by anything?

            1. I think it was pretty clear, but in case it’s not: <i/.every procedural issue that exists with respect to the original challenge.

              Can you outline, in detail, how you think your challenge should play out?

              1. Noscitur, taking that as your reply to my question, I conclude your answer is, no, you cannot detail any particular procedural issue which could stand against an assertion of sovereign power to invalidate S.B. 9.

    3. The existence of private enforcement at the founding is already fatal to this argument, but I think there’s also a different fatal problem: there’s still accountability for the law.

      The legislature passed a law with private enforcement mechanisms. If the people don’t like it, they can vote in a new legislature that will repeal it. Laws aren’t permanently set in stone and immutable – the legislature can change them. And the legislature is still elected, no matter who is enforcing it.

      1. Squirrelloid, doesn’t matter. Legislators have to be politically accountable, and law enforcers have to be politically accountable. Both.

    4. “Republican form of government” =/= “the form of governing I think works best”. You’re just making something up for what a republican form of government “has to be” so it fits your desired outcome.

      1. tkamenick, nope. This is junior high school civics, not rocket science. If it is not a representative government it is not a republican government. A government which exercises key powers—including law enforcement—without political accountability cannot be a representative government.

  2. I have an exceptionally vague recollection that there was something in the DoJ v Flynn v Judge Sullivan saga that touched on this question of when and whether a judge is a neutral arbiter and when he becomes a party.

    I’m probably wrong, but I think it was when the DC panel granted mandamus, and Sullivan sought a review en banc. The issue was dodged by the DC en banc court deciding to rehear the panel decision sua sponte, so that it didn’t have to decide whether Sullivan having sought review made him a party.

    Anyway, what lodged in my mind was a vague feeling that maybe judges can make themselves parties if they try hard enough.

    1. Absolutely! Though maybe I’m naive – I’d like to think they don’t make a habit of it.

    2. As a formal matter, you seek mandamus by filing a suit against the judge that you want to be ordered to act differently, which means that the petition is generally styled “[Petitioner] v. [Court]”, and the judge is technically a party. Judge Sullivan took the unusual (but certainly not unprecedented) step of actually participating in the mandamus litigation, which is probably what you’re thinking of.

      1. You made me look it up. It’s covered in the en banc review of the DC panel judgement on the Flynn mandamus petition. And it’s a bit complicated.

        Judge Henderson, dissenting, basically lays out the case for the prosecution (of Sullivan) and the majority defends. Judge H says the rules of appelate procedure make Judge S a party only to the limited extent of being required to do what the AC tells him. Since the panel told him to reply to the mandamus petition, he could do that and no more without becoming an actual party, which would disqualify him from the case. And Judge H says that by petitioning, uninvited, for a review en banc (which she thinks is unprecedented) Judge S made himself a real party, since only parties can so petition. And if Judge S was a real party he’d be automatically disqualified.

        There also seems to be a bit of a spat between Judge H and the majority about what the en banc court did when it vacated the panel decision, before proceeding with the en banc hearing. Judge H says the words of the order – which say “upon consideration of the petition for rehearing en banc” – are consistent with Judge S’s petition being granted and not consistent with the en banc court going sua sponte.

        So reading between the lines of the spat, it looks to me as if the majority saw some force in Judge H’s arguments, if the case had proceeded on the basis on Judge S’s petition, rather than sua sponte. Hence the sua sponte, which Judge H seems to be hinting might have been an ex post facto move by the majority.

        Which is decidedly odd since presumably Judge H would know when the sua sponte vote was taken. Unless the Chief Judge can just go round asking each judge privately until he has a majority, and doesn’t then have to raise the question with the other judges.

  3. The time has come for Ds to pass laws that use the exact language of SB8, but target gun owners, people who are not vaxxed, and others. Lets see what the judges do then. I suspect that magically you will see those struck down quickly but SB8 would be still somehow a tough nut to crack.

    1. Remembee the lawsuit against Remington by the estates of the Sandy Hook murder victims?

  4. The entire SB8 controversy demonstrates a serious flaw in the current procedural law regarding affirmative challenges.

    If the EXISTING SB8 decisions are not ultimately found FLAWED, SB8 will become a model to kneecap all affirmative challenges to blatantly unconstitutional laws.

    Many have pointed out that NY could completely ban guns – with only private enforcement of the ban just as easily as TX bans abortion.

    Further – not only are the current decisions regarding SB8 clearly exposing serious flaws in current procedural law, but we have seen the same problems in less blatant forms quite recently.

    The left rants that bazzilions of courts rejected election challenges on the merits – yet they did not. They ducked the issue.

    This SHOULD have been an obviously stupid choice.

    Read the declaration of independence – when government does not have the consent of the government it is the right of the people to replace it – our founders did NOT mean we could replace it though elections, or court decisions. The declaration of independence was the legal basis for an insurection.

    It is the DUTY of government to not merely conduct elections lawfully – which did not occur, but such that the citizens trust the results.

    The purpose of our processes is to assure not only that government has the consent of the governed, but that nearly everyone accepts that.
    It is self evident that both then and now that large portions of the electorate do not trust the outcome.
    That is NOT solved by brushing them aside. It is not solved by dismissing them.
    If a significant part of the electorate does not trust the results – the process is REQUIRED to do what it takes to either prove them right or prove them wrong. Leaving them in limbo is a dangerous mistake.

    The same procedural law that is failing with SB8 failed regarding the election.

    When the controversy is a dispute between two ordinary parties – the resolution can wait until a plaintiff with standing sue a proper defendant.
    When the core controversy is over the legitimacy of government, or the a claim of state infringement on the constitutional right of millions of people – procedural obstacles undermine the rule of law.

    1. The left rants that bazzilions of courts rejected election challenges on the merits – yet they did not. They ducked the issue.

      They did not. Bazillions of courts rejected election challenges on the merits. Bazillions of other courts rejected them for, e.g., lack of standing, mootness, etc. These suits failed in every conceivable way.

      Read the declaration of independence – when government does not have the consent of the government it is the right of the people to replace it – our founders did NOT mean we could replace it though elections, or court decisions. The declaration of independence was the legal basis for an insurection.

      No, this is utterly wrong. The “legal basis for an insurrection” is a nonsensical concept. Insurrections by definition are extralegal. It was the moral basis for revolution, not the legal basis. (And they certainly did mean elections, with revolution only as a last resort.) The founders did not claim that their acts were legal — only that they were just.

      It is the DUTY of government to not merely conduct elections lawfully – which did not occur, but such that the citizens trust the results.

      Of course it occurred. And nobody can force people who believe in crazy things to stop believing in crazy things. Striving mightily and dishonestly to get people to mistrust the results and then crowing that one was successful at sowing that mistrust and therefore the election does’t count is the height of immorality.

  5. “The provision was unenforceable, because no government official can enforce the mandate or injure the plaintiffs by collecting a $ 0 penalty. ”

    As I said at the time, they needed a plaintiff who’d be injured if they failed to comply with the mandate, not by the zeroed out fine, but instead by some other mechanism. Someone on parole, who might be tossed back in the clink if they were discovered to have violated a law. Someone in a profession, (Law, maybe?) where you can lose your certification if found to be breaking the law.

    I believe a test case like that could have been constructed, with a bit of ingenuity.

    1. Interesting. But it seems to me most licensing bodies or professions ask whether you have been convicted or at least charged with a crime, not whether you have committed the acts that might constitute a crime. To say nothing of something that is not a crime but a civil violation.
      The probationer is interesting. But again–is probation or parole revoked for breaking any law or just breaking a criminal law? If a probationer engaged in antitrust violations, would that be a basis for revocation. Anyway, my guess is that case would be too speculative for standing, because it relies on the executive seeking a revocation for failure to comply with that obligation. Great defense if anyone tried, but not enough of a threat to get into federal court on offense.

  6. I believe that the procedural structure of SB8 opens a Pandora’s Box for mischief on a host of constitutional matters but, as a matter of Federal Rules of Civil Procedure, the challenges to SB8 will be forced to proceed through Texas State Courts. The abortion providers want the trial record/finding of facts (if a hearing on the merits is ever heard) to be in a Federal District Court of their forum choosing in Texas. SB8 procedurally, and as held by the 5th Circuit of Appeals has precluded aberration of the rules of Civil Procedure to allow Federal court jurisdiction.

    Quit playing games and file a “friendly lawsuit” in Texas State Court and proceed via Texas Rules of Civil Procedure and then seek Certiorari to SCOTUS. This DOES PROCEDURALLY DELAY a constitutional right. That’s why I believe this is a Pandora’s Box that activists will use against gun rights, religious rights, and free speech rights.

    This isn’t the first time mischief and hooks were used to advance agendas. But for Griswald v CT, there would not be a Roe v. Wade. (Note that Casey significantly modified Roe. It retained the “essence of Roe” and then established a new legal standard of “undue burden”). Griswald was the president of Planned Parenthood of CT. It has been documented that Griswald trolled the halls of Yale Law School seeking novel legal ideas to support his business opportunities. CT had not enforced the ban on contraceptives for over 50 years. Planned Parenthood generates revenue from providing contraceptives and by performing abortions. Griswald v. CT took a law that had not been enforced in 50 years to be the basis for establishing a right to privacy and thus the enhanced business opportunities for Planned Parenthood across the country.

    Ultimately, the dispute today is whether jurisdiction for SB8 is in State or Federal Court. The Constitutional dispute is over the legal test. Casey is an “undue burden”. Four justices sought in Hellerstadt to have the legal test “a weighing of the benefits with the burdens”. Justice Roberts subsequently was consistent and did NOT agree with the weighing of benefits with the burdens test.
    Dobbs will be determinative on the issue of the legal test. Dobbs has extensive legislative history and supporting evidence that the international norm for regulation of abortion, ie Europe, is that State regulations that significantly restrict abortions align with 12 to 13 weeks. The 15-week point of restriction does not present itself as “undue” when international norms are closer to 12-13 weeks. I predict SCOTUS will affirm the legal standard of Casey, “undue burden” and that 15 weeks is not “undue”. There will then be a full majority opinion rejecting the “weighing of benefits with the burdens” test.

    1. Before Griswald there was Poe v. Ullman, where the Supreme Court declined to reach the merits because the plaintiffs couldn’t show that the named defendants were enforcing or were likely to enforce Connecticut’s contraceptives law against them.

  7. Two isssues.

    First, the Supreme Court had developed an overbreadth doctrine in the context of the First Amendment in which the mere existence of a statute with penalties creates a “chilling effect” creating standing to sue.

    The Supreme Court had up until this case applied overbreadth doctrine concepts to abortion cases, essentially providing a partial waiver from the usual standing rules because of “chilling effect” type concerns.

    Assuming that this approach was wrong and abortion cases should get regular procedure and not get special waivers of standing rules, the place to decide whether to overturn that approach or not is the regular docket, not the shadow docket. In shadow docket cases, the Supreme Court should avoid changing not only the merits questions but its doctrine on rules like standing.

    The second issue is that this case was radically different from Texas v. U.S. The law in Texas v. U.S. had no penalties at all, and hence was not capable of creating a chilling effect. The law in this case most definitely had penalties, so a chilling effect was definitely possible. The relevant question was which defendants if any were sufficiently connected to those penalties to be held responsible for enforcing them. That’s a radically different question from the one Texas v. U.S. decided.

    1. That is, in Texas v. U.S. the plaintiff didn’t suffer any injury, so they couldn’t demonstrate an injury in fact, the first prong of the standing inquiry.

      But in this case, the plaintiffs did suffer an injury under the standing rules the Supreme Court had previously established. The mere existence of the statute created a chilling effect. And this chilling effect was as real and demonstrable as any that the Supreme Court has accepted in past chilling effect standing cases.

      The question before the court involved the second prong of the standing inquiry, whether the named defendants caused the injury.

      I think under a fair analysis of its past practice of being relatively loose with standing rules in abortion cases, the Supreme Court would have accepted the District Court’s assessment regarding causality pending further proceedings rather than attempt to review on a thin favtual record without briefs or arguments. Of course there are arguments that this past practice was wrong and should be changed. But whether its past practice was correct or should be changed is a question the Supreme Court should only undertake to decide on the regular docket, not the shadow docket.

    2. Overbreadth doesn’t get the plaintiff out from under the absence of someone to sue or the absence of any threat of enforcement against him by the government.

      1. Professor Wasserman, sue the People of Texas facially and collectively, as a politically sovereign entity. Let the complainant be the People of the United States, as the national sovereign. Ask that the remedy be a Supreme Court decision that S.B. 8 is facially void, on the basis I outlined in the comment which began this thread. That basis avoids all arguments which relate to abortion issues.

        That way, the parties are matched alike, on the same high level of abstraction. Decide the case on that level, with no particular person compelled to do anything, and with no remedy available to any plaintiff who tries to bring a case under a law which has been declared void.

        Can you explain why that would be a problem to do? Given the postural novelty which Texas created deliberately, I cannot see any good reason to accept that there is no room for procedural novelty in deciding the outcome. Whatever practicalities the case demands, tailor them to the dual ends of keeping the arguments abstract, and addressing the persons involved as collective entities only. If that breaks new ground, so did Texas.

        1. The people of a state are not suable, certainly not by a private plaintiff. A judicial opinion is not a remedy to be sought, it is an incident of the court’s role in resolving a dispute between parties.

          We could have a “council of revision,” in which a court passes on the facial validity of a law. That’s not the system we’ve created.

          None of this is necessary. There are ways into court. They require violating the law and getting sued. No one wants to do that, understandably. But that’s where we are.

          1. Professor Wasserman, how do you conclude that the federal government, defending a decree from the sovereign People of the United States, is a, “private plaintiff?”

            My last paragraph anticipated your, “But that’s where we are,” response. You ignored that, and responded as if it had not been said. Given the novelty of the legal posture created by S.B. 8, can you explain why your own assessment of, “where we are,” ought to exclude from the discussion alternative assessments?

            Can you explain why, when the sovereign People of the United States decree that every state will have a republican form of government, some particular person must risk anything at all to oppose with their slight personal power the vastly superior power of a state’s sovereign? Why must a private party attempt to do weakly what the national government is sworn to do strongly—which is defend the Constitution?

            You seem to frame this as a struggle over personal rights, to be vindicated or not by personal initiative. You insist that legal rules should keep it that way. It is none of that. It is a contest of sovereignty, with a state challenging the nation. Let the nation defend itself.

            Or, more pointedly, by what power can a sovereign be prevented from defending itself? Do you suppose that power of sovereign self-defense—which by definition is without constraint—can be entangled and thwarted by rules promulgated by the sovereign’s own judges, or that they ought to do that? Do you suppose it would be wise of those judges to insist on rules to hamper the sovereign, and thus expose a state to the ultimate assertion of sovereign power, which is force?

            Or is it possible that you suppose that judges ought to rule supremely, and wisely constrain the sovereign People on all questions which any individual might bring into a court room?

  8. Good points all, and probably technically correct. But doesn’t this all just highlight the absurdities in the current procedural regime (much of which, though certainly not all, developed by conservative justices over the last 50 years)? If an enterprising drafter can essentially do a “Lawyers hate him – this man found one weird trick to flagrantly violate the constitution!”, then maybe we should revisit those procedural rules? Shouldn’t constitutional rights be cheat-code proof?

    Even if you’re against abortion, this law goes beyond that to chill al sorts of speech and association- it creates liability for anyone who aids or abets or **intends** to aid or abet an abortion (e.g., donating to a reproductive rights org.).

    1. Even if you’re against abortion, this law goes beyond that to chill al sorts of speech and association- it creates liability for anyone who aids or abets or **intends** to aid or abet an abortion (e.g., donating to a reproductive rights org.).

      It’s not quite that broad. It expressly exempts first amendment protected conduct.

      And aiding and abetting requires scienter. Unless you’re donating to the “10+ Week Abortions For Texas Women Fund,” there’s not going to be any possibility of aiding and abetting liability from merely writing a check to an organization.

      1. Point well taken, thank you.

    2. I don’t believe so, for a variety of reasons. I will repeat the argument we make in the paper and are introducing here in pieces—the law is not a cheat-code and it has not insulated the law from judicial review. It channels it into a new, riskier posture for providers. But the opportunity to get review and have the law’s validity adjudicated is there.

      This is a cheat code only if the constitution requires not only judicial review, but offensive pre-enforcement judicial review in a federal forum. The constitution has never required that.

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