The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One criticism of S.B. 8 is that this private enforcement regime would allow blue states to prohibit firearm ownership. I've asked gun rights activists what would happen if California banned the sale and possession of handguns through a private cause of action. Their response: "Come and take it." They would engage in active civil disobedience, and resist the law. They would be happy to get sued, and would win in court every time. Of course, gun rights activists know that Heller is secure. Even if the Court will not expand the Second Amendment to conceal carry in Bruen, there is no realistic chance the Court scales back the right to keep a gun in the home.
Abortion, however, stands in a very different position. Roe and Casey are on the chopping block. There is a chance both precedents are overruled this Term. And abortion providers understand this risk all too well. As a result, with few exceptions, abortion providers have strictly complied with S.B. 8. Indeed, during the brief interregnum before the Fifth Circuit stayed Judge Pitman's ruling, Planned Parenthood refused to provide post-cardiac-activity abortions. Why? Under S.B. 8, the providers would be subject to retroactive liability. And those suits could bankrupt Planned Parenthood.
This fear of prospective liability has largely defined the litigation strategy. Planned Parenthood, as well as the United States, have gone on offense to avoid raising their constitutional arguments in a clean, defensive posture. Today, briefs were filed in United States v. Texas. The intervenors make this point directly:
The United States also complains that "the theoretical availability of S.B. 8's 'undue burden' defense has not actually prevented the law from achieving near-total deterrence of covered abortions." Mot. to Vacate Stay at 15. But that is because this Court is currently considering whether to limit or overrule Roe and Casey.28 See Tex. Health & Safety Code § 171.209(e) ("The affirmative defense under Subsection (b) is not available if the United States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833 (1992)"). If abortion providers felt confident that this Court would persist in its support for Roe and Casey, then they could violate the statute without fear of liability. The deterrence comes from the uncertainty surrounding the future of Roe, and there is nothing unconstitutional about a statute that threatens to impose retroactive civil liability in response to a Supreme Court ruling.
The Intervenors argue forcefully that the proper channel to review this law would be in a defensive posture. And they draw an analogy to the wedding provider cases:
[T]his Court has no basis in fact or law to presume that the Texas courts would reject valid constitutional defenses asserted in SB 8 litigation. The United States does not even assert otherwise; it just complains that SB 8 deters abortion providers from defying the law and inviting this litigation. But that objection is misguided and immaterial. It is common that the risk of losing a constitutional defense will deter a party from engaging in protected conduct—think of the Christian wedding vendors who are facing threats of private lawsuits if they decline to participate in same-sex weddings—but the deterrence comes from the uncertainty on whether the courts will ultimately accept their constitutional defense. See Arlene's Flowers, Inc. v. Washington, 141 S. Ct. 2884 (2021) (denying certiorari). What is deterring abortion providers here is not the procedural structure of SB 8 or its threatened penalties, but the uncertain status of the right to abortion given the grant of certiorari in Dobbs v. Jackson Women's Health Organization, No. 19-1392. Few if any rational abortion providers will risk violating SB 8 when this Court is considering whether to overrule Roe and Casey. That is what is inducing Texas abortion providers to comply with SB 8.
Baronelle Stutzman and Jack Phillips were placed in this position.
Update: Shortly after I wrote this post, the Firearms Policy Coalition filed an amicus brief in support of DOJ in U.S. v. Texas. The group sees S.B. 8 as the type of law that could be used to violate gun rights:
FPC is interested in this case because the approach used by Texas to avoid pre-enforcement re-view of its restriction on abortion and its delegation of enforcement to private litigants could just as easily be used by other States to restrict First and Second Amendment rights or, indeed, virtually any settled or debated constitutional right. FPC takes no position on whether abortion should be protected by the Constitution but believes that the judicial review of restrictions on established constitutional rights, especially those protected under this Court's cases, cannot be circumvented in the manner used by Texas.
What do I know?