The Volokh Conspiracy
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Our fourth post explained that providers and advocates will have to raise their constitutional challenges to SB8 in a defensive posture in state court after being sued by a claimant for violating SB8, with our fifth post arguing that state courts should dismiss SB8 claims on state constitutional standing grounds. If state courts nevertheless determine that SB8's statutory grant is sufficient to establish standing, the next move of providers and advocates is to assert their federal defenses, despite provisions in SB8 purporting to limit their availability.
As detailed in our first post, it is common for rights-holders to assert federal constitutional rights in a defensive position to avoid liability in state court; potential certiorari review from the United States Supreme Court is available at the end of the state judicial process. A successful constitutional defense results in the dismissal of the enforcement suit or denial of the relief sought by the claimant. Defenses alone, though, do not provide affirmative relief for the rights-holder, such as an injunction prohibiting further enforcement. To obtain affirmative relief, the rights-holder must counterclaim or otherwise seek offensive relief, perhaps by filing the § 1983 actions described in our third post. Without taking such affirmative action, the defensive position may provide a favorable judgment in the case for the rights-holder, along with any applicable preclusive or precedential impact flowing from that judgment.
The primary defense for providers and advocates sued under SB8 will be the federal constitutional rights of women under the Fourteenth Amendment to choose to have an abortion under Roe v. Wade and Casey v. Planned Parenthood. Some advocate defendants may have additional federal constitutional arguments under the First Amendment as made applicable to the states. Under Brandenburg v. Ohio, speech can be regulated as incitement to unlawful conduct only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." These federal constitutional defenses, at least under current precedent from the U.S. Supreme Court, should bar an SB8 claimant from recovering.
But SB8 purports to limit such defenses available to rights-holders in state-court litigation. SB8 prevents providers and advocates from asserting the constitutional rights of women to terminate pregnancies, unless the defendants demonstrate that the tests for third-party standing established by the U.S. Supreme Court are satisfied. SB8 then redefines the "undue burden" standard as an affirmative defense; the defendant has the burden to prove that an award of relief in the case will either prevent women from having an abortion or create a substantial obstacle for women seeking an abortion. SB8 next eliminates as a defense that the abortions were lawful at the time they were performed under existing judicial precedent. This allows "any person" to recover for abortions performed within SB8's four-year statute of limitations—even for abortions protected under Supreme Court precedent when performed—if Roe and Casey are overruled or modified sufficiently to uphold SB8's ban on post-heartbeat abortions.
Raising Abortion Rights
The abortion right rests with pregnant patients, not providers or advocates. SB8 targets abortion providers and advocates for liability, but then limits their ability to raise the constitutional right of women to choose and then obtain an abortion. But all defendants are entitled to what Kermit Roosevelt frames as "valid rule due process"—the right to be subject to prosecution, liability, and sanction only pursuant to a valid rule or law, regardless of the source or nature of the potential invalidity of the legal rule. An invalid rule cannot be the basis for imposing liability; a litigant in a defensive position seeking to avoid liability may raise all bases and arguments that the substantive law is invalid to avoid liability in the enforcement action.
Bond v. United States illustrates. The Court allowed a criminal defendant to challenge her prosecution on the grounds that applying a federal chemical-weapons law to her local individual activity (of trying to expose her husband's pregnant mistress to toxic chemicals) violated federalism principles by invading the province of state law. Although federalism largely preserves state authority, the Court authorized Bond to assert that defect to avoid criminal prosecution. She had the right to raise arguments in her defense that would result in the invalidity of the statute, as an invalid statute could not be the basis of an enforcement action against her.
Providers stand in the same posture in defending SB8 actions. Although the constitutional defect in the fetal-heartbeat ban is the infringement on the rights of non-party patients to terminate their pregnancies, the law targets the providers, never their patients, for liability and sanction. In challenging the constitutional validity of a ban on pre-viability abortions, providers assert their own first-party right not to be held liable under a constitutionally defective legal rule. It follows that the statute's attempt to restrict providers from raising the defense is invalid. State courts must allow providers to challenge SB8's constitutional validity as a defense in the state-court action, and state courts must abide by Roe and Casey (at least until overruled or modified) in adjudicating that defense.
We can illustrate the point by returning to the hypothetical law creating a cause of action against offensive racist speech discussed in our first post. Imagine that the cause of action runs not against the person who displays the racist message, but against the person who sold the materials (posterboard, paint, etc.) knowing that the materials would be used to make the sign. The First Amendment right to utter racist expression rests with the speaker, not the seller of the necessary materials. Nevertheless, the seller would have the right to defend the lawsuit by arguing that a ban on otherwise-protected racist speech violates the First Amendment and that an invalid law cannot support the seller's liability.
The other relevant SB8 defensive limitation creates a common puzzle in constitutional litigation— whether an actor violating a statute at Time1 when judicial precedent rendered enforcement of the statute constitutionally invalid can be subject to civil liability at Time2 following a change in judicial precedent rendering the statute enforceable. Retroactive judicial decisionmaking is common. Due process is typically only violated in the criminal context, and then only if a new interpretation is unforeseeable such that the defendant did not have the requisite fair notice of the prohibited actions. Especially if the existence of constitutional protection for the right is uncertain, it is doubtful that rights-holders could succeed in arguing that retroactive enforcement violates due process when the conduct prohibited by the statute is reasonably ascertainable. In such cases, the statute provides notice that the prohibited conduct is unlawful, and the non-enforcement of the statute under judicial precedent may be reversed or modified. SB8's prohibitions on post-heartbeat abortions are clear, and the scope of the abortion right is in a period of transition.
But the Supreme Court in overruling its decisions has some discretion in appropriate circumstances to fashion remedial relief to minimize the impact of legal transitions on settled expectations. Immunity doctrines and good-faith defenses are common examples. Although the Supreme Court has disavowed prospective decisionmaking, other remedial and procedural devices, including the scope of its judgment and stays, may mitigate the impact of retroactive decisionmaking. Yet these devices are discretionary rather than constitutionally mandated protections.
To the extent retroactivity may be constitutionally problematic, it would not provide a basis for proceeding initially in federal court. If SB8's retroactivity provision does run afoul of due process, a court must decline to enforce that provision. The state court—bound by judicial oath and Supreme Court precedent—can resolve that constitutional due process issue as a defense in the SB8 action in state court by dismissing actions seeking to recover for pre-precedential-change abortions.
The role of the federal courts regarding defensive litigation is limited to Supreme Court review at the end of the state-court proceedings. Before then, the state courts must address and resolve the constitutional federal defenses in SB8 litigation in accord with the dictates of the Supremacy Clause. This is a normal and long-established method to adjudicate constitutional rights.
Our final post will offer concluding thoughts on navigating SB8's procedural puzzles.