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Abortion Providers Seem Likely to Prevail in Texas SB 8 Case

Today's Supreme Court oral argument suggests they will get the votes of six or more justices. If so, it will be a crucial victory for judicial protection of all constitutional rights, not just abortion rights.


Earlier today, the Supreme Court heard oral arguments in two cases challenging Texas' anti-abortion law, SB 8. The more significant of the two, Whole Woman's Health v. Jackson, deals with the procedural issue of whether abortion providers targeted by the law can file lawsuits challenging it in federal court. Texas argues that they cannot, because SB 8 delegates all enforcement to private "bounty hunter" litigants, who stand to get awards of $10,000 or more if they prevail. That means, the state claims, that there is no state official who is an appropriate defendant for a preenforcement challenge to the law, since none of them have any control over enforcement. I went over the issues at stake in the case in greater detail here.

After reading the oral argument transcript, it seems to me highly likely that Texas is going to lose this phase of the case, and the abortion providers will indeed get their pre-enforcement day in federal court. By my count, the plaintiffs probably have at least six votes in their corner: the three liberal justices, plus Chief Justice Roberts, Brett Kavanaugh, and Amy Coney Barrett. Clarence Thomas could perhaps go either way. If so, that's great news for anyone who values judicial protection of constitutional rights, even if you are no fan of Roe v. Wade and other Supreme Court precedents protecting abortion.

The big problem with Texas' position is that, if the private enforcement ploy insulates SB 8 from judicial review, the same trick could be used shield state laws targeting a wide variety of other constitutional rights, including gun rights, free speech rights, freedom of religion, and much else. That's the danger I and many other critics of SB 8 have highlighted from the very beginning of this litigation. It was recently emphasized in a powerful amicus brief by the Firearms Policy Coalition, which - for good reason - fears the consequences for Second Amendment rights.

It looks like at least three of the conservative justices have gotten the message on this point. Consider this crucial question posed by Justice Kavanaugh to Texas Solicitor General Judd Stone:

Are you saying…. that Second Amendment rights, free exercise of religion rights, free speech rights, could be targeted by other states… and say everyone who sells an AR-15 is liable for a million dollars to any citizen?…

Would that kind of law be exempt from preenforcement review in federal court?….

So we can assume that this will be across the board equally applicable as the Firearms Policy Coalition says to --to all constitutional rights?

In response, Stone essentially admitted that Kavanaugh's point is correct.

Earlier, Chief Justice John Roberts asked whether the state's logic would also extend to a law where the potential penalty was "a million dollars," rather than the $10,000 or more provided for by SB 8. Stone had to bite that bullet, too.

Justice Barrett similarly worried that a win for Texas would create a loophole for states to evade judicial review of laws threatening constitutional rights.  As far as I can tell, Stone wasn't able to reassure her, either.

You know your case before the Supreme Court isn't going well if you have to concede multiple important points raised by the opposition - in this case that the SB 8 model can be used to undermine judicial review of state laws threatening other constitutional rights, and that there is no limit to the size of the penalty the states can impose. As Roberts emphasized, a fine of one million dollars would create an enormous "chilling effect" on constitutional rights, in the absence of pre-enforcement judicial review allowing people to challenge the law without risking liability if they lose.

For his part, Clarence Thomas wondered whether a federal court could potentially issue an injunction against private parties who might file an SB case, based on the theory that the former can be considered state actors:

[W]hy wouldn't you consider the S.B. 8 plaintiffs to be sort of private attorneys general? If the attorney general or other state officials don't enforce the law, would it be that unusual to consider them as acting in concert with the state to enforce a state-preferred policy?

I'm far from sure that Thomas was satisfied with Stone's efforts to address this issue, which involved an attempt to compare SB 8 to state laws authorizing tort suits (see pp. 47-49 of the oral argument transcript).

At this point, I can't tell which way Thomas is likely to vote in this case. But if your creative effort to attack abortion rights gives even Thomas (perhaps the current Court's toughest critic of Roe v. Wade) pause, it's yet another bad sign for you.

Justices Neil Gorsuch and Samuel Alito seem likely to support Texas. But their two votes aren't going to be enough for Texas to prevail.

If the plaintiffs do win, it seems likely that it will be on the basis that they will be allowed to sue state court law clerks, in order to enjoin them from accepting SB 8 lawsuits targeting abortion providers. This would get around Supreme Court precedent restricting federal courts' power to enjoin state judges.  To my mind, the distinction between clerks and judges seems silly and artificial. The whole point of enjoining the former is ultimately to prevent the latter from hearing a case. I would prefer a more straightforward ruling that would empower the abortion providers to seek injunctions against any and all state officials who might facilitate enforcement of SB 8, regardless of whether they are judges or not.

That said, a decision allowing lawsuits targeting the clerks would be good enough for government work! It would still have the effect of neutering the subterfuge that seeks to insulate SB 8 from preenforcement judicial review.

As I have previously emphasized, this case is not about the future of Roe v. Wade and abortion rights. Even if the abortion providers get their day in federal court, the Supreme Court can still choose to overrule or severely limit Roe and other cases protecting abortion rights. They might even do so in the very near future, as they consider the case of Dobbs v. Jackson Women's Health Organization, which raises that very issue.

The real stake in the SB 8 litigation is whether states can use delegation to private litigants as a tool to shield laws threatening constitutional rights from judicial review. Fortunately, it looks like the majority of justices are intent on forestalling that dangerous scenario.

In addition to considering  Whole Woman's Health, the justices today also heard oral argument in United States v. Texas, the companion case addressing whether the federal government has the right to sue Texas over SB 8. That case is a closer call than Whole Woman's Health, and the Biden administration might well end up losing it. I will leave the details of that case to commentators who know more about it than I do.

But, as I indicated in my last post on SB 8, US v. Texas becomes far less important if the plaintiffs prevail in Whole Woman's Health. Whether the federal government can file preenforcement lawsuits against laws like SB 8 matters less if there are a wide range of private parties who can do so.


NEXT: Justices Gorsuch & Sotomayor Dissenting from Refusal to Hear Case About Public Access to Foreign Intelligence Surveillance Court Opinions

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  1. The Texas lawyer will cause the birthing of a million additional Democrats.

    1. Nah, the abortionists will -- depending on their actual motives for not performing abortions -- either decide that the value of SB8 as a bogeyman for fundraising and coercing SCOTUS squishes has lost its impact, or lose their irrational fear that SCOTUS will expose them to suit and resume performing abortions just as if SB8 were not on the books.

  2. Re: the injunction running against the clerks.

    What about Stone's point that under the Texas Rules of Civil Procedure the case is "deemed filed" when the clerk receives the complaint.

    So an injunction preventing the clerk from filing it...doesn't actually stop the complaint from being filed.

    1. On the distinction of filing by the plaintiff and filing by the clerk

      SG Judd Stone may be a valid legal point, but it's a fine one. More importantly, it doesn't really work like that in practice. Here is why: All civil court filings are now through the Texas e-file system (with a few exceptions such as prisoner litigation and pro se litigants that can't figure out how to use the system even though there are online tutorials and may do paper filings), and any and all such e-filings are reviewed by the clerk/deputy clerk as they come in (at least for technical compliance), and are then electronically stamped (or not). When a new suit is filed, there is no existing cause number, so a docket number has to be created and that necessitates examination of the submitted document (in PDF) to see what it is and how to process it according to standing operationg procedures. Even for an existing case, you can't directly upload to the docket. The clerk has to okay the filing, and apply the electronic FILED stamp with date or equivalent.

      It is technically possible for the clerk/deputy clerk to deny filing an original petition as it comes in simply by rejecting the e-filing (called "submission" at the pre-processing stage), whether with a reason given or not. In theory this shouldn't happen since the clerk has a ministerial duty to file, but that doesn't mean it won't. Additionally, a reluctant clerk could find pretextual defects and return a submitted filing for that reason to avoid docketing a new SB8 suit. There would likely be no way for the public to find out about such rejected attempted suit-filings because they will not result in a public electronic trail (except for the thwarted plaintiff, of course).

      All that also means that it wouldn't be too hard to implement a workable screening method at the intake point if indeed a court order were to require Texas trial court clerks to reject SB8 petitions. Attorney-filed pleadings would specify the cause of action or "count" in one section of the pleading. Some pro se pleading may require a more thorough perusal, but wouldn't pose a big problem either. In case of ambiguity, a clerk could reject a filing for failure to indicate the nature of the suit and instruct the filer to resubmit, then reject the pleading once its nature is clarified.

      All this goes to the technical feasibility of implementing injunctive relief against clerks (redressability). Whether clerks *should* be restrained in such fashion is a highly debatable on the legal merits.

      1. Is SCOTUS also going to enjoin the clerks to refuse to file suits against the clerks for denying Texas residents their right to file suit?

        Were the clerks to do that as a job action without SCOTUS intervention, what would be the remedy?

    2. What about Stone's point that under the Texas Rules of Civil Procedure the case is "deemed filed" when the clerk receives the complaint.

      He cites Rule 22 for that, but that language is not in Rule 22. Rule 22 just says "A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk." That tells what's necessary, but not what's sufficient.

      The language in question is in Rule 5, but that language is most naturally read not as causing the complaint to automatically be filed but as defining timing of filing for the purposes of deadlines. The language of Rule 5 is: "If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time."

      Note the first part: "shall be filed by the clerk." The clerk still has to act.

  3. I can think of a useful answer to this problem. Just overrule *Hans v. Louisiana* -

    ...and say that a person can sue *his own state* in federal court. The 11th Amendment, after all, only applies to someone from *another state* (or a foreigner) suing a state.

    Of course, the Supreme Court will never overrule this Hans case in a million years. They're not going to allow a mere citizen to go straight to to the Supreme Court and sue his own state for an allegedly unconstitutional law. (Though the Supreme Court specifically has jurisdiction in a case where a state is a party, eg, in cases under the Constitution).

    The Supremes are the laziest judges around. They only want cases they select themselves, even suits against the states. Other courts don't have the luxury of picking and choosing the cases they want to hear.

    Think of the logic - if you think your state is violating your rights, sue your state directly in the Supreme Court and get a Supreme Court ruling on the matter. The Supremes may have to do a bit more work, but work is what they're supposed to be doing, especially with the salaries and benefits they have.

    1. Just to be clear, if the Supreme Court is to follow Hans v. Louisiana as a supplement to the 11th Amendment, then no individual should be able to sue the state. Ex Parte Young was a dubious exception, but this situation seems to go beyond Ex Parte Young, which applied to state enforcement officials. Normally, though, suing a state official in an official capacity is (no matter what legal knots you tie yourself into) a suit against the state.

      I've set forth my solution, but if they're sticking to their doctrine that individuals can *never* sue the states, then Texas should win in its efforts to stop their clerks or whoever being sued, as a suit against the state in thin disguise.

      1. This situation does go beyond Ex Parte Young. And as I wrote a couple of months ago here when we first started discussing SB8: so what? Ex Parte Young is a judicially created doctrine; what the court wrote, it can rewrite, to address a novel situation.

        1. If the court can rewrite precedent, it can get rid of Hans. A much more textual approach than further diluting the 11th Amendment.

  4. "Justices Neil Gorsuch and Samuel Alito seem likely to support Texas."

    Which should terrify everyone who believes the term "Constitutional right" should actually mean something.

    A State creating a bounty system targeting the lawful exercise of disfavored rights should be a 9-0 loss, regardless of the right being attacked.

    1. I would second that. Beyond the merits of the constitutional-evasion structure of the Fugitive Uterus Act you would think the constitutional rights of women whose health is threatened would count for something.

      With this barbaric Texas law, literally everyone in the state has a say of what happens with a pregnant woman's body except the woman herself. She is no longer even a second-class citizen it is more like being livestock.

      1. Nonsense. As long as Casey is good law any abortionist can proceed exactly as if SB8 isn't on the books. As Texas Solicitor General Judd Stone says (this is mischaracterized by the lying jackass Somin as " Stone essentially admitted that Kavanaugh's point is correct"):

        ...the answer to that in both part of Justice
        Kavanaugh's question, is that... we have to
        assume that other state courts' judges are, in
        fact, going to faithfully apply the
        Constitution, its rights, and this Court's decisions.
        It will have to occur through the
        state court process to be sure, but that is an
        adequate substitute and adequate venue ...--

        SB8 excempts from any award of damages, costs or injunctive relief any Casey-protected abortion, and SCOTUS has no business assuming that TX courts will not follow TX law.

        1. SB8 prohibits pre-viability abortions that are constitutionally protected by Roe v. Wade and Planned Parenthood v. Casey. There is no way to tap dance around that inconvenient fact.

          1. Stop lying. It does no such thing unless SCOTUS overturns its rulings on those cases.

          2. We've already established that, if you ever read SB8, you didn't understand it. No need to keep proving it.

        2. SB8 excempts from any award of damages, costs or injunctive relief any Casey-protected abortion

          It does no such thing. You ought to admit that you aren't a lawyer and don't know what you're talking about.

          1. Indeed. SB8 only permits an onerous "undue burden" affirmative defense requiring the defendant to show 1) they have standing to assert a woman's right to an abortion and 2) an award of relief in this particular case (without reference to any other case, real or hypothetical) will result in specific women having a substantial obstacle to getting an abortion, where no longer having assistance is not considered a substantial obstacle. That's not close to a blanket exemption for a Casey-protected abortion.

            But even if I am wrong, the defendant is on the hook for attorney's fees. And, the win would be retroactively pyrrhic if Casey is reversed. Such a rule needs to be subject to a pre-enforcement challenge.

    2. SB8 does not create "a bounty system targeting the lawful exercise of disfavored rights", it creates a bounty system targeting actions that are not lawful (including abortions that are NOT currently Casey-protected), including any post-heartbeat abortions that SCOTUS may later admit ought not have been protected.

      That Somin continues to ignore that this is the case is no excuse for you to do so.

      1. Then why the need for creative legislating? Why not just pass a normal law outlawing it?

        1. I doubt a "normal law" would've reached the SC and would've had no chance in any case.

  5. The justices in the minority will be notorious enemies of limited government and rule of law.

    1. Not if those in favor of limiting the scope of kritarchal tyranny are the ones in the minority..

    2. It would follow ineluctably from Hans v. Louisiana (see above) - overrule that decision and you can blast the dissenters (if they turn out to be so), but if both sides profess to adhere to the Hans decision, then ruling for Texas is perfectly sensible and logical.

  6. So the SC splits the hairs and says "state judges are a no-go, but state clerks are ok to enjoin." What is there to stop say a state judge (absent state procedural rules) from going down and accepting any filing on their own accord, just skipping the clerk? And many states have some sort of constitutional guarantee to open courthouses, so even if the clerk were the only person who could accept a filing there is a decent argument that the state constitution mandates "someone" or "anyone" has to do so if they are in a position. So state judge just rules, that person is me since the clerk's office is closed, then takes the filing. Absent a good old federalism kind of stand off, what would stop it from getting to this point?

    1. Yeah. This strikes me as "too cute by half." Just put on your big boy judicial pants, and make a ruling. If SB8 is unconstitutional (I sure think it is), then come up with a justifiable ruling. But, none of this "enjoin just the clerks" bullshit. It's weak, it looks weak...and even if the justices are okay with that; it's bleeding obvious that anti-choice advocates will immediately try a dozen work-arounds. Which would mean pointless and almost endless additional litigation, as each clever workaround is dealt with in court...and then in appellate court...and then off to federal court, etc etc..

      I think liberals and conservatives, anti-abortion and pro-choice, can all agree with, "Just make a fuckin' decision already!"

      1. Yes = Just put on your big boy judicial pants, and make a ruling. + I think liberals and conservatives, anti-abortion and pro-choice, can all agree with, "Just make a fuckin' decision already!"

        I would add this caveat: Decide carefully.

      2. "I think liberals and conservatives, anti-abortion and pro-choice, can all agree with, "Just make a fuckin' decision already!""

        I'd say, based on recent history, that the only people who reliably reject that sentiment (On multiple issues!) are the Justices themselves.

    2. Why didn’t you have to enjoin clerks before? Because enjoining plaintiffs is good enough.

      And you didn’t necessarily know the prospective plaintiffs’ actual names before. You didn’t need to. Why do you need to know them now?

    3. They’re not going to do that. The oral argument made that very clear. See my comment below.

  7. How does an injunction against law clerks implicate the First Amendment freedom to petition?

  8. They will prevail if for no other reason than that anytime a litigant can point out that the other side’s position is that the court does not have the power to do something, the court, at any level, will generally take the challenge and show that it does.

  9. If court clerks are ordered to read every complaint and filter out the S. B. 8 cases, can I hand a document to my buddy the local judge, who I know to be no friend of abortion, and let him try to figure out how to get it into the system?

    1. Does a judge have statutory authority to accept complaints for filing? Filing a complaint is a legal act, not a physical one. If you hand your lawsuit to the courthouse janitor and ask him to slip it into the courthouse files, would that make said lawsuit filed?

      1. If you are pro se and excused from mandatory e-filing (see my earlier comment), you can just snail mail your complaint to the clerk (with CM-RRR if you want proof of mailing and receipt). Additionally, some court houses have an after-hours/weekend drop box with time stamping machine (which works like a stapler) near or inside the drop slot, so you can actually file-stamp your pleading yourself plus an extra copy for yourself to keep as proof. But it would still have to be docketed by the clerk. So there is the choke point. And even outside the SB8 context, a disfavored paper filing could just somehow disappear/get lost. Shredded instead of scanned possibly. Who would ever find out where it went?

  10. Coming into oral argument, I had assumed the US would have the better case, since Whole Womens Health had already lost on the shadow docket back in September.

    But the oral argument quickly made clear that at least Kavanaugh and Barrett, and likely Thomas, were looking for a way to slightly extend the Ex Parte Young framework to allow the private plaintiffs to sue a suitably narrowed but adequate set of defendants, and if so were likely to decline letting the US obtain what Barrett characterized as “pile on” injunctions.

    Justice’s Thomas suggested that in a scheme where private parties are enforcing a state policy with no identified personal interest in the case, they are functioning as private attorneys general, and hence as agents of state, rather than genuinely private parties. Why not consider them agents of the state’s attorney general and sue him and his agents? That would be only a slight extension of Ex Parte Young, and avoid serious problems that would come from things like enjoining judges from hearing cases.

    What surprised me about the SG was that she didn’t seem to get where the Justices were coming from. They were clearly hinting that if you can just identify limiting principles, you can win. She kept asserting maximalist positions. She kept arguing, for example, that even if the private parties could get exactly the relief the United States was asking for, the United States was also entitled to sue (hence Barrett’s ascerbic “pile on” comment). She should have recognized the fundamental equity principle that new equity remedies only get considered if no other remedy is available, so if the exact same injunction could be obtained by a narrower path, there is no need to do extraordinary things just for a pile on.

    I think not making this concession absolutely killed the United States’ position. She needed to either identify something the US could get that the private plaintiffs couldn’t, or concede that if the private plaintiffs could get all requested relief, the United State’s lawsuit wasn’t necessary.

    The attorney for the clinics, on the other hand, seemed quite open to the idea of identifying a narrower set of defendants to sue and enjoin, as long as it would do the job.

    The SJ blew it in several other ways. For example, when Alito asked her if the US was getting all worked up because this was about abortion, she fell in the trap by starting to talk about how important abortion was. Sottomeyor had to bail her out by asking her wouldn’t the same problem apply if a state had a similar scheme regarding other constitutional rights.

    She was like she came in only with talking points and couldn’t depart from the script. She couldn’t grasp that in order to satisfy the justices, she needed to broaden the concerns and narrow the relief from what she had come in with.

    1. The SJ would have been better off grabbing Justice Thomas’ suggestion and running with it (or something like it) as a way out of the justices’ obvious dilemma, rather than standing pat on a maximalist position despite the justices’ obvious discomfort with it, and insisting that if the United States got anything at all, it had to have the power to enjoin judges, clerks, etc.

      That’s a good way to end up with nothing.

  11. It seems very clear that a majority will come up with a set of people to sue that isn’t going to include state judges and court clerks. They may follow Justice Thomas’ suggestion to regard private attorneys general as functionally agents of the attorney general and then enjoin the attorney general and agents. They may come up with some other similar formulation. But it’s going to be a set of people that is going to involve the minimum disturbance necessary to do the job, and in particular will avoid raising the serious constitutional issues and overturning the precedents that suing a state’s judicial branch would involve.


      All they have to do is reverse the Fifth Circuit's conclusion that Mr. Dickinson is entitled to interlocutory appeal. He is not a sovereign, so they can send him back to the district court while the official-capacity defendants' appeal may continue in the Fifth Circuit on their immunity and related contentions. That way, the SCOTUS would have done something to blunt the outrage of the pro-abortion crowd and their academic entourage in the short term. And unlike 29 million Texans who are eligible to file SB8 suits, Dickson is actually before the court: a party, rather than an absent nonparty. And so are the three intervenors in U.S. v. Texas.

      Then, the WWH v. Jackson case goes back to Judge Pitman for the previously-scheduled but cancelled preliminary injunction hearing against Dickson only. No occasion for certification of the Texas trial judiciary and their clerks to put them in SB8 bondage.

      Since the appeal in WWH was taken from the denial of the defendants' motion to dismiss for lack of jurisdiction, the issue of whether Dickson should be enjoined from filing SB8 suits wasn't properly litigated under the criteria governing the grant of a preliminary injunctions. That can happen then in due course even while the Fifth Circuit ponders the finer points of whether court clerks are Ex Parte Youngsters. The Fifth would have less leeway for doctrine creep, and the SCOTUS could still weigh in later if push comes to shove, perhaps with the benefit of Dobbs already having been decided, though perhaps not yet announced.

      Alternatively, the SCOTUS could itself order dismissal on want-of-jurisdiction grounds (thus preempting resolution of the current appellate issues by the Fifth), but let the case continue against private would-be SB8 claimant Dickson with the state officials out of the case. Whether he is a proper target for an anti-suit injunction in federal court hasn't been fully litigated on the merits. Or so the reasoning could go.

      And while so ruling, the SCOTUS might also recognize that 14 pre-enforcement actions are pending in state court in Austin against Texas Right to Life, a private-sector entity. The MDL issue was brought up at oral argument but the Texas SG was either not well prepared on the subject or feigned lack of knowledge about specifics and status so as to maintain the pretense that the State of Texas had no awareness or involvement since those suits involve private parties on both sides. See No. 21-0782 (MDL Panel docket) and related Planned Parenthood mandamus in the SCOTX under Tex No. 21-0844

      Similarly, the SCOTUS could deal with the U.S. v Texas case by deferring to the Fifth Circuit on the US/DOJ-specific standing and right-to-sue issues, but allow for the case in the district court to continue against the private would-be SB8 plaintiffs (the three intervenors represented by Mitchell) and the actual SB8 plaintiffs (Oscar Stilley and Gomez) that have intervened (Stilley), or still trying to stir the pot and muck things up (Felipe Gomez, who wants both Texas and US to litigate SB8 in his pending case in state court). If the Supremes want to reach to merits, they could also vacate the injunction as to the trio of intervenors (who appealed) on the ground that they only intend to become enforcers as to abortions not protected by Roe and Casey. Or they could lift the Fifth Circuit's stay of the Pitman injunction only as to the three private-party intervenors-defendants as a symbolic gesture while avoiding a resolution of the dicy issue of restraining judges, clerks, and private nonparties at large. The opinion accompanying such disposition could still provide guidance to lower courts, both state and federal.

  12. "If so, it will be a crucial victory for judicial protection of all constitutional rights, not just abortion rights."

    Sure -- where "constitutional rights" are defined as not having anything to do with the actual text of the Constitution, but are instead whatever polices judges feel like making up. Whether that is inventing rights that aren't in the text or denigrating and vanishing those that are.

    Hurray! What a crucial victory.

  13. Assuming the court does find a way to give protection to at least some potential defendants of suits brought under SB 8, I hope that protection will be generalizable to other laws that have "bounty hunter" provisions, such as the ADA (which enables suits against businesses whose bathrooms don't meet specific size requirements) and California's Prop 65 (which enables "gotcha" suits against businesses that don't post silly chemical warnings).

    1. Sounds like both of those are distinguishable, particularly the ADA. In those cases, the plaintiff is someone who was harmed. The ADA plaintiff was deprived of adequate access. The Prop 65 plaintiff was deprived of fair warning, although I concede that one is weaker.

  14. I haven't read the briefs and didn't listen to oral argument. Did anyone discuss whether an SB 8-like scheme might be applied to procedural rights (e.g., due process, jury trial)?

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