The Volokh Conspiracy

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


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.