More on SB 8, Reasons, and Limiting Principles - A Rejoinder to Stephen Sachs

The slippery slope risks created by upholding SB 8 threaten a vital constitutional principle - one far more important than any considerations on the other side. That is sufficient reason to rule against Texas in this case.


In a thoughtful recent post, co-blogger Stephen Sachs responds to my own post arguing that a Supreme Court ruling in favor of Texas' SB 8 anti-abortion law creates greater slippery-slope risks than a ruling against it. My post, in turn, was in part a response to Steve's earlier post on the same topic.

In his latest contribution to the debate, Steve explains that his concern is not about slippery slopes, but about "principles":

The demand for a limiting principles is part of a demand for principles—a demand that the Court be principled in reaching its decision, that its judgment follow from premises that it's willing to defend in other cases too.

I agree that such principles are important. But my - and others' - concern about the slippery slope risks created by SB 8 is ultimately a concern about the threat posed to a vital principle. The principle at stake is that state governments cannot gut judicial protection for a constitutional right. For reasons explained in my earlier post (and highlighted by several justices during the oral argument), if Texas prevails in this case, it and other states could use similar tools to undermine a wide range of other constitutional rights, including gun rights, property rights, free speech rights, and others.

Preventing such an outcome is itself an important principle, and - in Steve's terms - a "premise that [the Court should be] willing to defend in other cases too." If a state enacts a statute that blocks meaningful federal judicial review of laws that might violate constitutional rights, courts should not permit such a subterfuge to succeed. If doing so requires overruling or limiting previous precedents on issues like sovereign immunity and limitations on the plaintiffs' ability to sue to enjoin judges (as opposed to other types of state officials), then that is what should be done. These latter principles are far less important than ensuring judicial protection for constitutional rights, and therefore should give way in cases where there is an unavoidable conflict between the two.

I outlined some of the reasons why judicial review should prevail over these other considerations in my previous post on this issue. While I would be happy to get rid of sovereign immunity almost entirely (and the same for artificial distinctions between enjoining judges and enjoining other state officials), ruling against Texas in this case would not require going  that far. The Supreme Court need only rule that sovereign immunity must give way in a case where the only alternative is to shield from challenge a state law that could create a serious "chilling effect" on a constitutional right. Such "chilling effects" already justify preenforcement lawsuits in a number of other contexts, such as freedom of speech. The case for such prioritization is especially strong when we are dealing with rights protected against states by the Fourteenth Amendment.

It may not always be easy to separate a chilling effect case from one where such a danger doesn't exist. But no more so than interpreting a wide range of other constitutional law doctrines where courts must enforce a standard rather than a bright-line rule.

Similarly, the Supreme Court need not create a broad right to seek injunctions against state judges in every case (an issue Steve raises in another recent post). It could again be limited to chilling effect cases. Alternatively, the injunction could target not judges themselves, but clerks or other officials whose participation is essential for an SB 8 lawsuit (or other similar cause of action concocted by another state using the SB 8 model) to go forward. If you cannot  or will not allow people sue to enjoin the judge, let them sue to enjoin the clerk, the janitor, the bailiff, or whatever other less-exalted official needs to be stopped to forestall SB 8 lawsuits.

In my view, such distinctions between state judges and lesser officials who help judges do their work are silly and artificial. I would prefer the Supreme Court just cut the Gordian knot and rule that state judges can be enjoined in the same way as other state officials who violate constitutional rights. But if the Supreme Court isn't willing to do that, targeting the lesser officials is a far less problematic departure from principle than allowing the SB 8 subterfuge to succeed, thereby imperiling a wide range of constitutional rights.

Finally, Steve and others suggest that, even if the SB 8 strategy really does pose a grave threat to constitutional rights, the right remedy is to go to Congress to get them to enact new causes of action for victims of rights violations. This argument ignores the basic principle that a central purpose of judicial review is to protect constitutional rights in situations where elected officials are unwilling or unable to do so. If legislatures could be relied on to do that job, we probably wouldn't need judicial review in the first place.

Admittedly, the above points are unlikely to persuade those who believe that protecting sovereign immunity and judicially-created rules against enjoining state judges are more important principles than ensuring judicial protection for constitutional rights. But I'm betting that people with that rank order of preferences are very much in the minority - including on the Supreme Court.

When two principles conflict, we should prioritize the more important one. Call it a meta-principle, if you like! That too is an idea that judges should be willing to apply in future cases.

UPDATE: I should perhaps reiterate that, as I have repeatedly emphasized, this issue is not about whether Roe v. Wade should be overruled or whether abortion is a genuine constitutional right. It's about whether Texas and other states can avoid having to litigate such questoins in court by evading judicial review. And if they can do that in the case of abortion, they can do the same thing in other situations.

NEXT: Sean Wilentz Reviews Noah Feldman's New Lincoln Book, "The Broken Constitution"

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  1. By all means, let citizens of Texas sue the state of Texas if they're threatened by an allegedly unconstitutional law. Let them take the case straight to the Supreme Court, as the language of the Constitution seems to allow (if we take it literally, which I suppose is naive).

    Let the Supreme Court inform us whether the law is constitutional. They're the only court not bound by Supreme Court precedent, so they can overrule bad decisions (like, for example, Roe).

    1. "Allegedly unconstitutional"

      You don't understand our system of governance very well, do you?

      1. Don't leave me in suspense, explain what's wrong with referring to a law as allegedly unconstitutional?

        Like I indicated, only the Supreme Court can overrule Supreme Court decisions. Are you absolutely confident that, if it got hold of this law, the Supreme Court would strike it down?

        If not, might I ask, what exactly is your problem?

        1. Is abortion currently supposed to be generally legal in this country?

          Does SB 8 CURRENTLY allow people to be sued civilly for the lawful exercise of that currently-protected constitutional right?

          Does that violate federal supremacy? Yep.
          Does it violate the 14th Amendment in at least two ways? Yep.

          I fully understand that all you care about is that abortion = bad and therefore SB 8 = good, but that's the view of a fool. SB 8 is prima facie unconstitutional for allowing people to be sued for the exercise of a constitutional right. It is no more constitutional because it targets abortion than if it targeted the First Amendment and say, the publishing of a book.

          Don't pretend like you're arguing in good faith. If SB 8 targeted the exercise of a right that you actually recognized, you'd be singing a different tune.

          Who knows - if SB 8 is somehow upheld, maybe we'll all get to hear that refrain soon enough when liberals start targeting anyone who helps someone buy an 'assault rifle' or a 'high-capacity magazine.'

          Perhaps then you'll give a shit about someone attempting to write laws designed to eliminate the very notion of a constitutional right.

          1. Oh, yes, Karnak the Magnificent, keep up the mind-reading, when I specifically called for prompt judicial review of SB8, just as I'd call for prompt judicial review of anti-gun laws - in the Supreme Court itself, that is.

            1. "They're the only court not bound by Supreme Court precedent, so they can overrule bad decisions (like, for example, Roe)."

              Your bias is the only reason that you're pretending SB 8 isn't prima facie unconstitutional. No mind-reading is required when you put your motivation in writing for all to see.

              1. Under current law, it is. All he's saying is that the Supreme Court can change current law.

              2. Jason Cavanaugh,

                Could you do me a favor? Could you give yourself a painful wedgie for me?

              3. I think I see why you're freaking out, foaming at the mouth, and screaming about bad faith.

                At some level you must be aware of your *own* bad faith.

                You insist that all you want is a prompt federal review of SB8.

                And I agree with you that you should get precisely that.

                Yet because I said that review should be in the Supreme Court, not a lower court, your bad faith is exposed.

                You don't want the Supreme Court potentially overturning Roe v. Wade.

                So when you claim to want federal review, you're not acting in good faith at all.

                1. "You don't want the Supreme Court potentially overturning Roe v. Wade."

                  While I don't think that they should overturn Roe or Casey, my issue with SB 8 is not, and never has been, the fact that Texas targeted abortion. SB 8 needs to be smacked-down because its content is nothing more than an attempt to nullify the concept of a constitutional right, and to prevent the Federal government from being able to do anything about a State trying an end-run around the Constitution.

                  If Texas can get away with this, then no constitutional right is safe.

                  I've made that crystal-clear with the numerous SB 8 posts that Blackman has made, so your allegation that I'm arguing in bad faith is a fabrication of your own mind.

                  You, on the other hand, state it's only "allegedly" unconstitutional, want "prompt federal review" and think Roe is "bad law." Notably missing from any post of yours on the subject is any concern about the structure of SB 8 or the threat it poses to anything other than abortion.

                  I don't need to know how to read tea leaves to understand your motivation here.

                  1. Let's play spot-the-logical-fallacy, shall we?

                    "attempt to nullify the concept of a constitutional right"

                    That's the question the Supreme Court needs to address - is abortion a constitutional right.

                    If abortion is a constitutional right, SB8 is unconstitutional because it tries to nullify a constitutional right - the sacred right to abortion.

                    If abortion is *not* a constitutional right, then of course SB8 *doesn't* nullify a constitutional right.

                    I suggested the Supreme Court should get to this subject promptly. You, for some reason, don't want this to happen.

                    If, under the procedure I suggest, the Supreme Court decides abortion is a constitutional right, then they would say SB8 is unconstitutional and stop it from being enforced.

                    If, on the other hand - a prospect you seem to dread - the Supreme Court decides abortion is *not* a constitutional right, then they *won't* strike down SB8, because SB8 *doesn't* nullify a constitutional right, or even the "idea" of a constitutional right, whatever that means.

                    It's possible I did you an injustice. It's possible you're 100% honest *and* 100% stupid.

                    1. "That's the question the Supreme Court needs to address - is abortion a constitutional right."

                      You continue to ignore the underlying issues with the construction of SB 8 because your head is stuck up your ass thinking the problem is specifically with the right to abortion.

                      You also continue to deliberately misconstrue my position on the matter - again presumably because your head is up your own ass.

                      Perhaps you should make a new account and call yourself Cal Cretin.

                    2. The fact is, I suggested letting people sue *their own* states under the U. S. Constitution - and to file suit in the Supreme Court itself. Yes, even over laws like SB8.

                      What part of your demands would this *not* satisfy? You can't seem to take yes for an answer. Which suggests bad faith.

                      I wouldn't have brought up the issue of bad faith if you hadn't mentioned it - you must be sensing bad faith somewhere, and it wasn't from me.

                      He that smelt it dealt it.

                      Or, in Latin, Foetorem extremae latrinae.

      2. I understand it well, because I’ve made my own sausage before.

        But court procedures are a little more arcane.

        However go back and look at EV’s post of a few weeks ago where he discusses how the courts handle cases now where private suits are brought that infringe on constitutional rights. Most of them deal with speech, but as he lays out the procedure, the respondents file a motion that says the suit should be dismissed because the suit infringes on a constitutionally protected right. For instance if a neighbor or a homeowners association objects to campaign signs in your yard saying they are unsightly, depress home values, and are a nuisance.

        That’s exactly what’s happening here right? And it’s nothing new.

        It wouldn’t take much for a public interest law firm to generate boilerplate to do the same in this situation to get the case dismissed with a minimum of fuss, or get the case removed to federal court, then dismissed with a minimum of fuss.

        1. Oh yeah, and Congress could certainly pass a law that expedited removal to federal courts, and awarded attorneys fees for private lawsuits that infringed on constitutional rights, so it’s not like the couldn’t bake in a deterrent for filing the lawsuits.

          1. The point is, it doesn't depend on Congress. If a state passes a law that deliberately attempts to circumvent judicial review, it's unconstitutional and the federal courts should do whatever is necessary to strike it down. Congress has nothing to do with it, as that would allow pro-lifers (or whatever other group it is) to filibuster and effectively permit a lawless legislative action.

            And this is different than normal defensive review. I agree that a state can have an interest in limiting review to defensive action. The Tax Injunction Act is a great example of it. But (1) there has to be some justification for it other than just trying to prevent review, and (2) it has to ONLY channel the review to defensive review and NOT do anything else to make judicial review more difficult or impossible.

            1. We all know that collecting taxes is a far more important thing than preserving unborn life.

  2. Doesn't judicial review happen when a lawsuit is brought under SB-8?

    1. Slippery slope arguments are generally fallacies. It might be good to reframe your argument as something else.

      And this doesn't seem like a slippery slope argument anyway. It's more like "what's good for the goose is good for the gander".

      1. Sorry for the double post

      2. Who are you replying to? XY didn't make a "slippery slope" argument.

        Judicial review will occur when an SB8 case is decided. Why isn't that soon enough?

        1. Because that might not be for years, particularly if you count the appeals. That's a lot of deaths in childbirth in the meantime.


          1. Death in child birth is exceedingly rare in the US in the modern era.

          2. How on earth could a SCOTUS ruling on SB8 affect events in Poland?

            There is anyway no reason SB8 should affect abortions even in Texas after the abortionists stop posturing about being afraid to perform them because Kavanaugh and Barrett are somehow going to vote to "overturn" Casey. Not in this life.

            1. I didn't say it would. I just gave a high-profile example of how abortion bans kill.

              1. There is no abortion ban in Texas.

                1. ...so your "meantime" horrible is nonsense even if the effect of an abortion ban were what you say it would be.

      3. No, I mean as a factual matter when a lawsuit is brought against an abortion provider, it goes to trial, and then you will have judicial review.

    2. Texas courts presume that a duly enacted statute is constitutional and then require the plaintiff to meet his/her/its burden to prove all elemens of the cause of action in question under the applicable evidentiary standard.

      The judicial review (for statute validity) comes into play when the defendant asserts unconstitutionality as an affirmative defense, which also requires that the Texas AG be given notice and an opportunity to defend the statute in question. A ruling can in theory be obtained by traditional motion for summary judgment. Lack of standing (which also an issue in the SB8 context), however, would normally be raised through a plea to the jurisdiction (which is just a different label for a motion to dismiss for lack of jurisdiction).

      If a constitutional challenge is not properly asserted, such affirmative defense to liability could be waived, and then can generally not be raised for the first time on appeal. But that would hardly happen here, especially when the first SB8 case (or subsequent one) has been baited out to the plebs-at-large to generate a bevy of test cases to choose from; or if the the case is collusive and contrived in the first place (i.e., brought by a cooperating plaintiff), a tactic that has incredibly been advocated by some to the law professors who presumably also teach ethics to the next generations of officers of the court.

      Some ethics.

      1. ARE there a bevy of such cases? I know of the OK and IL ones and yours...

        If what you say about inability to raise an affirmative defense to liability on STATE appeal is correct then a possible CORRECT way for a defendant to get Federal review is to not raise it at trial and then raise the issue of the unconstitutionality of the penalty for a Casey-compliant abortion AFTER the penalties are confirmed by the TX courts?

        I see no CORRECT way to Federal jurisdiction for any Casey-compliant abortionist unless the TX courts rule wrongly all the way through SCoTX -OR- he deliberately refuses to raise the undue burden defense.

        Course, I understand SCOTUS has shown signs, through Kavanaugh and ACB fecklessnes, of a willingness to take a shit on the law because Abortion is Sacred.

        1. Do you have any authority for the proposition that a possible way for a Texas defendant to get federal review is to not raise it at trial and then raise the issue of the unconstitutionality of the penalty for a Casey-compliant abortion after the penalties are confirmed by the TX courts? Are you overlooking Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)?

          The only federal court with appellate jurisdiction of state court proceedings is the Supreme Court, which declines to consider federal issues which were not raised in the state courts.

          1. I didn't say anything about District Courts, so you need to get your imagination under control. And precedent is no barrier to anything in an Abortion Case, or hadn't you noticed?

            1. Do you claim that SCOTUS would address a federal issue which was not raised in state court? Where do you get that notion?

              1. What part of "precedent is no barrier to anything in an Abortion Case" used words too big for you to sound them out?

                1. Invective is no substitute for argument supported by authority.

                  Supreme Court Rule 14(1)(g)(i) states in relevant part:

                  (i) If review of a state-court judgment is sought, specification of the stage in the proceedings, both in the court of first instance and in the appellate courts, when the federal questions sought to be reviewed were raised; the method or manner of raising them and the way in which they were passed on by those courts; and pertinent quotations of specific portions of the record or summary thereof, with specific reference to the places in the record where the matter appears (e. g., court opinion, ruling on exception, portion of court's charge and exception thereto, assignment of error), so as to show that the federal question was timely and properly raised and that this Court has jurisdiction to review the judgment on a writ of certiorari.

                  Do you have an example of SCOTUS disregarding this requirement? Please provide a specific citation.

                  1. SCOTUS can to anything it wants with or without its its own rules, as it can with its own precedents. Again, what part of "precedent is no barrier to anything in an Abortion Case" used words so big that you still can't sound them out?

                    1. If you don´t have an example, just say so. The content of a petition for writ of certiorari is in this instance is jurisdictional.

                      Once more, you are just making shit up.

                  2. Obamacare being upheld by claiming the fine is a tax. Something not raised by the Obama administration.

                    1. Supreme Court Rule 14(1)(g)(i) applies when review of a state court judgment is sought. Your example is inapposite.

  3. Your "standard" fails where it starts. "Chilling effects" is a non-standard from the beginning. Drivers licenses have a chilling effect on the right to travel. Having a chilling effect on disfavoured behavior is the purpose of any law!

    So the only real question is why you think abortion is a more important and/or easily "chillable" right than the right to free speech? That right has survived libel laws and the threat of frivolous lawsuits regarding those for centuries. It needs no special grant of pre-enforcement standing. How is this miracle achieved?

    1. It's self-evident that the meta-principle here is this:

      Abortion über alles!

      All else must yield, give, are be thrashed.

      And if you-all averse to ueber as too teutonic, just go with "Abortion Absolutism."

    2. So the only real question is why you think abortion is a more important and/or easily "chillable" right than the right to free speech? That right has survived libel laws and the threat of frivolous lawsuits regarding those for centuries. It needs no special grant of pre-enforcement standing. How is this miracle achieved?

      I don't even know where you're going with this line of argument, as one can raise "chilling effects" arguments in pre-enforcement challenges against laws that attack free speech.

      But of course your argument is disingenuous, as no states have had the audacity to design a libel law in such a way as to evade judicial review. There are no libel laws that purport to erase standing requirements, allow for random venue, provide for one way fee shifting without even the opportunity for the defense to make a Rule 11 type motion, deny the defense the ability to raise defenses, create retroactive liability, provide for statutory damages with a floor but no ceiling, and provide for serial suits with no preclusion.

      1. David, could that even be done? = ...to design a libel law in such a way as to evade judicial review. There are no libel laws that purport to erase standing requirements, allow for random venue, provide for one way fee shifting without even the opportunity for the defense to make a Rule 11 type motion, deny the defense the ability to raise defenses, create retroactive liability, provide for statutory damages with a floor but no ceiling, and provide for serial suits with no preclusion

        I tend to doubt that it could be. Why? Aren't there different cases and precedents to have to deal with, to draft such a law? This guy Jonathan Mitchell clearly understood the case law unique to abortion and crafted a law to addressed existing precedents.

        As a practical matter, if one were to try and do 'SB-8 like' laws for gun rights, or free speech, wouldn't they need to do it totally differently because different precedents apply to those rights? I don't know that the confluence of the precedents for those rights would allow for the same mechanism to be used, would it?

        1. You couldn't do a find-and-replace to swap the word "speech" for "abortion," but you could almost do so with firearms, and you could certainly draft a law that contained many of those objectionable elements. The condition that makes SB8 so threatening — well, in addition to the attempt to evade pre-enforcement review by making only private parties able to enforce it — is that it attacks third parties rather than the people whose rights are directly affected. So if you swapped abortion providers with gun dealers, you could get this almost exactly. (For speech you'd have to target web hosting or copy shops or something.)

          1. Ok, so my thinking might have been erroneous wrt wondering if SB-8 could actually be replicated for speech or guns since different laws and precedents apply to those rights. I thought for a moment, maybe SB-8 is not so bad and it can be confined to abortion because of the unique case law there.

            The third-party thing? Ugh.

            1. If anything, SB-8 was inspired by some of the lawfare against gun manufacturers, it just takes the war to a new level of sophistication.

              I agree that SB-8 has multiple features that need to be universally prohibited. I just think they could be prohibited as a result of post-enforcement litigation.

              I think the abortion industry is desperate to avoid that route because the injunctions are better for preventing test cases that might roll back abortion 'rights'.

              1. If anything, SB-8 was inspired by some of the lawfare against gun manufacturers,

                No, it wasn't. Stop making things up.

  4. Slippery slope arguments are generally fallacies. It might be good to reframe your argument as something else.

    And this doesn't seem like a slippery slope argument anyway. It's more like "what's good for the goose is good for the gander".

    1. Slippery slope arguments are not fallacies.

      1. They can be. Such as when there is insufficient reasoning and evidence to support the belief that the first step will lead to the undesirable end.

        I would agree with Somin, though, in this case. Legislatures have a history of taking full advantage of any change in Supreme Court precedent and/or following the lead of other states once a loophole in existing precedent is discovered. We have every reason to believe that the first step of allowing SB 8 to stand will serve as a green light to states of all colors to act in ways currently considered to be unconstitutional.

        1. But backfilling this particular slope doesn't require pre-enforcement review, it would perfectly well be accomplished via standard post-enforcement review, except that doing it that way would inconvenience some abortionists.

            1. Half of their patients, anyway.

              1. You have made that half baked assertion before, and it is no more true now than then. A fetus is not the abortion provider´s patient.

                1. Right. It's the "abortion provider's" victim.

  5. The retard Somin is somehow determinedly unaware that if "chilling effect" is sufficient to overturn all standards then every suit that requires overturning standards will become an alleged "chilling effect" suit.

    And all for what? Any abortionist in TX can go right ahead and perform a Casey-compliant abortion and, if sued and if the TX courts apply SB8 as written he will suffer no penalty... unless SCOTUS "oveerturns" Casey, which THIS Court will do when pigs fly.

    1. Any abortionist in TX can go right ahead and perform a Casey-compliant abortion and, if sued and if the TX courts apply SB8 as written he will suffer no penalty

      You have repeated this falsehood over and over again. SB 8 provides for an onerous affirmative defense where a provider must 1) establish they have third-party standing to sue to protect a woman's right to have an abortion and 2) the relief sought by the specific lawsuit will place a substantial obstacle in the way of specific women from having an abortion.

      1. There's nothing "onerous" about it. SB8 accepts current 3rd party standing for abortionsists. How do you think WWH and Planned Parenthood became parties to all the suits they've been parties to? And the "relief sought" is no obstacle to anyone unless it is translated by TX courts into "relief provided", whic TX copurts can't do unless the undue burden tests in Casey are "overturned"?

        Got any more falsehoods you want me to debunk?

        If not, stop lying.

        1. the "relief sought" is no obstacle to anyone unless it is translated by TX courts into "relief provided"

          Does an award of relief categorically violate Casey? The text of SB 8 strongly suggests otherwise since it places the burden on the defendant to prove such an award places a substantial obstacle in the path of women seeking abortions.

          But let's assume you are right and this law is a nothingburger. Why then didn't Texas make it an ordinary criminal statute and why are abortion providers cowering inn fear of it. It appears you are the only one who thinks it is a nothingburger.

          1. You're very quickly going to learn that Gandydancer's arguments are typically bald-faced lies, and when confronted by that fact, he'll claim that he's right and that you've not even addressed the nonsense that came out of his mouth.

            1. Your lies are so fact-free that I would be surprised that you emit them were I not aware that you are a nitwit with no other tool in your bag of tricks.

          2. It's good politics for both sides to pretend that SB8 isn't a nothingburger,.

            And I've denied that any abortion provider has any good reason to cower in fear of SB8, or that its clear that that's the actual reason for much "service witholding", but you never know with Team Stupid members. A lot of them seem genuinely COVID Panicked despite reality. That doesn't create an actual Constitutional issue however. The law says what it actually says.

            1. How about we let a court decide what the law says to determine whether is a constitutional issue.

              1. Why would I do that when I think so many SCOTUS Justices are shit?

    2. Which law school deserves credit for developing your level of legal insight, Gandydancer?

      1. Gandydancer is secretive about when and where he got his legal training, if any. I strongly suspect that he is a dilettante dabbling in the law, with an acute case of confirmation bias.

        1. I believe he went to Twitter Law School.

          Or, probably Parler or Gab Law School, really.

          1. Is any of those ranked below South Texas College of Law Houston?

            1. I asked you your own question, Asshole.

        2. You'll notice that you never see Gandy and Dr. Ed2 in the same room at the same time. Just sayin'.

          1. Did Ed exhibit the random capitalization favored by half-educated Republicans?

          2. Nah. No similarities in style. Dr. Ed was more of a doofus who made up weird anecdotes, but was careful to explain that he wasn't a lawyer, and he was generally good natured. GandyDancer makes up law and calls everyone who disagrees with him stupid.

            1. It;s absolutely stupid to claim that I've made anything up without providing any examples, but you are the epitome of that.

              1. You say stuff about what the law is that are completely untrue, and provide zero examples to support.

                And then there are your factual take, which generally end with you stomping off with an insult after you're called out on some inaccuracy or misinterpretation or other.

                You can do better - it doesn't take a lot to Google factual statements you make, just to be sure there isn't some countervailing take you may want to address lest you seem to be bullshitting.

                1. One red flag is if you find yourself writing 'clearly' or the like. It shows something is especially convincing for you, which probably doesn't hold for others and should be supported with a citation or something.

                  Another is like here where you refuse to engage a factual issue with what you said. Now, DMN didn't provide any support either, so you should be able to blow him away if you find any kind of evidence at all! But you don't bother.

                  And then there is your refusal to read primary sources others bring to you. That's real bad - you're basically trusting whatever your secondary sources are over the facts. Which is not great if you care about the truth.

  6. Why the wailing and gnashing of teeth? Let a constitutional challenge be brought in a defensive posture. Then:

    1. SCOTUS holds it unconstitutional as applied to pre-viability abortion
    2. All pending cases regarding pre-viability abortions are dismissed.
    3. Anyone filing new cases will be met with sanctions.

    No vitiating sovereign immunity, no usurpation of precedents, no decimation of ex parte Young, no new causes of action, and no special rules needed.

    How would the ultimate outcome be any different is a pre-enforcement challenge is allowed against the state?

    1. It's the immediate effects on abortion provision, not the ultimate ones, that justify overturning all standards. I honestly don't know if the abortionists claimed apprehension that SCOTUS will "overturn" Casey is real or pretextual, but they seem to be witholding that "service", last I heard.

      1. Then make a case for the rocket docket. The system may not be perfect, but this seems to be one of those "perfection is the enemy of the good" situations. An overly-rapid response (or a perceived need for one) invariably leads to unforeseen consequences.

        1. You misapprehend what I said. If abortionists let their activities be chilled by phantom fears, or just withold services as a tactic to engender hysteria, fund raising and political pressure, that provides no good reason to eschew regular order.

          1. I believe the courts are capable of figuring that out if that is the case w/r/t any individual parties. IIRC, when the 1-day stay was in place, they reportedly went back to performing abortions that were banned by S.B. 8, which seems to militate in favor of their actions arising out of genuine concern of enforcement.

            1. On the contrary, they knew perfectly well that Pitman's novel injunction was not likely to survive 5th Circuit review, so that resumption of abortions argues that turning the spigot on and off is a purely political measure.

          2. The chilling effect of SB8 is real and substantial. Being sued for conduct which is plainly constitutionally protected is a non-trivial harm, notwithstanding the availability of an affirmative defense which should be dispositive. Even where that affirmative defense is successfully interposed at or before trial in one suit, that offers no protection against being sued again and again.

            Phantom fears? I hardly think so.

            1. So how is that different from, say, getting sued for saying something which is truthful? Why is this so much different that we need an injunction which prohibits clerks from even docketing the cases?

              1. The trial court determines whether the statement is truthful. In contrast in this case, there is no role for a court as a fact finder.

                1. Where do you get THAT?

                  Of course the trial court functions as a fact finder in SB8 cases.

              2. So how is that different from, say, getting sued for saying something which is truthful? Why is this so much different that we need an injunction which prohibits clerks from even docketing the cases?

                First, I would point out that many states have realized that getting sued for saying truthful things poses a serious problem and have enacted anti-SLAPP laws.

                But second, your question is disingenuous. You know why this is "so much different." The special features of SB8 that are so much different have been annunciated many times. I assure you that if the exact same law as SB8 were passed, but with the word "abortion" replaced mutatis mutandis by "constitutionally protected speech," we would see exactly the same reaction.

            2. You CAN be sued for, e.g., defamation when all you've done is engage on Constitutionally protected speech. And SB8 suits CAN be brought against abortionists for abortions that are NOT Casey-protected. AND in both cases TX courts are perfectly capable of dealing harshly with parties that launch nuisance cases. You really need to stop imagining horribles into existence as a cause for extraordinary actions.

              1. The court needs to determine whether your speech is protected based on the facts. And yes, the court can determine the abortion is not protected by Casey because the fetus was not viable. But the distinction is there is no further role for the court as fact finder when the fetus is not viable.

                1. "But the distinction is there is no further role for the court as fact finder when the fetus is not viable."

                  So you imagine, but Texas disagrees. It asks, (a) Is the fetus viable and, if so, was the abortion necessary to protect the life of the mother, and (b) if the fetus was not viable, but had a heartbeat, has Casey been "overturned" so that the abortion was nort Casey-protected. Etc.

                  At least you've dropped the ridiculous claim that "in [an SB8] case, there is no role for a court as a fact finder."

                  1. if the fetus was not viable, but had a heartbeat, has Casey been "overturned"

                    And, SB 8 improperly tasks the trial court to determine whether a successful suit would place an undue burden on a woman seeking an abortion.

                    1. False. It tasks the trial court to determine whether the tests in Casey, as modified, mean that the imposition of damages etc. would be an undue burden on a SCOTUS-recognized "Constitutional right", not to make any independent decision on "whether a successful suit would place an undue burden on a woman seeking an abortion." This is perfectly ordinary in any abortion prosecution. You DO know that there are still perfectly valid abortion prosecutions, don'y you?

                    2. SB 8's text strongly suggests the court is to make an indpendent determination

                      A court may not find an undue burden [...] unless the defendant introduces evidence proving that: (1) an award of relief will prevent a woman or a group of women from obtaining an abortion; or (2) an award of relief will place a substantial obstacle in the path of a woman or a group of women who are seeking an abortion.

                      Now, maybe I am wrong and you are right, but it's the job of courts to determine what the statute says (notwithstanding your snark they shouldn't because "so many SCOTUS justices are shit.")

                    3. Nonsense. So long as Casey is good law TX courts cannort make "independent determinations" but must instead defer to SCOTUS on what Casey says constitutes an undue buden on abortion. That is the clear implication of the langage in SB8 about how the application of the law is to change if and when Casey is overturned. If and when the Texas courts fail to do that even after appeal you would then have a timely appeat to the Federal courts instead of a premature one.

                    4. So long as Casey is good law TX courts cannort make "independent determinations" but must instead defer to SCOTUS on what Casey says constitutes an undue buden on abortion.

                      That's of course true and of course entirely disingenuous. SCOTUS has never spoken on the precise issue of whether damages suits against abortion providers constitute an undue burden on abortion, and therefore there's nothing specific for Texas courts to defer to.

              2. SB8 is designed and intended to encourage nuisance suits. No injury in fact need be shown. A defendant is subject to suit in any of Texas´s 254 counties, irrespective of any connection to the subject conduct. The court is prohibited from awarding fees and costs to a successful defendant. A successful defense gives rise to no claim preclusive or issue preclusive effect. A successful defendant is subject to being sued again and again and again.

                1. Let's see if it plays out that way, shall we?

                  1. Do you dispute any part of my comment here?

                    1. Of course. I dispute that your imagined parade of DOA nuisance suits will be allowed by the TX court system to clog its dockets. Because it won't happen.

            3. Except supporters of abortion were arguing that the SB8 wasn't having the effect it's supporters claimed and that was reason to dump it. You all just want this impediment removed and you don't care how or why.

      2. Who is actually implementing SB8? ... Judges?

        Well, just let the abortion-seekers sue the abortion docs if and when they are denied and told NO with reference to state policy. Alan Braid may be off the hook (as to his test case subject), not the others that used to be in the business of extracting homunculi in whole or in part and no longer are. They are after all, the ones denying the "pregnant persons" the fetus-demising services being sougt, and are the relevant agents of the state of Texas by conforming their medical practices to the proscription portion of SB8.

        Not to mention that they are heavily regulated in many other respects also. How are they NOT implementing the policy of the state of Texas and advancing the legislative objectives of preserving the lives of the pre-born? How can they claim not to be agents of the state and subject to Section 1983 suits if a constitutonal right to abortion exists, as seems to be the consensus among the intelligentsia, and they are the ones that ae denying - whether cruelly or otherwise - it fully-complicit, not mention licensed, agents of the State.

  7. I've heard it said that sometimes lawsuits are filed simply so SOMEONE, ANYONE will listen to the person filing the suit. That is, just hearing it is a form of catharsis.

    Now consider, the SCOTUS has created a constitutional right, and also said, basically, 'we don't want to hear it. go away' wrt to ANY limiting regulation. Would that they treated peaceably assemble, religion, 2nd, 4th and 5th amendments as assiduously as they do the ath amendment (the one with abortion).

    And now, Ilya and others are hell bent on denying ANY form of standing or ability to be heard. Shut Up! he explained. With typical GOP this isn't the hill to die on (yeah, I know is probably isn't GOP, but it is the SOP for them).

    Pray that the figurative hills don't lead to actual ones.

    1. I am unable to make sense of this comment. It is Texas, actually, that is trying to avoid the substance of SB 8 from being litigated in federal courts. SCOTUS has heard the merits of multiple cases involving regulations limiting the right to abortions. And they will hear this one. The only issue is, again, whether Texas can prevail in ensuring that Texas be allowed to chill abortions which, under the Constitution as currently interpreted by the Supreme Court, are constitutionally protected. Texas is trying to slow walk the merits determination of this limiting regulation. By all means, let them pass a limiting regulation and seek a resolution in court regarding the constitutionality of the new attempt to undercut Roe, but the only argument here is whether they should be able to stop legal abortions in the meantime and make the path to actual judicial review as long, slow, and expensive as possible.

      Ilya and others don't have a dog in the abortion fight. They are interested in a functioning system that protects constitutional rights (at least until the rights are deemed no long rights). Ilya is actually arguing that the people directly affected by the law, ought to be allowed to be heard expediently. You seem to be arguing against that.

  8. Ilya's rejoinder seems perfectly reasonable to me.

    I expect that the sachs guy might reply to reiterate that there's no constitutional right to preenforcement review (Hans v. Louisiana).

    The sachs guy said that he thinks that the Hans case was correctly decided. I'm not sure if he also thinks that the opinion highlights an important principle (no right to preenforcement review), or that he just thinks that there is no textual basis, or other basis, for the contrary to be gleaned from the constitution. And that textualism or originalism is the principle that he is most directly defending.

    If there is no right to preenforcement review, when should it be available? I suppose sachs would say only when legislators say so. But when it comes to constitutional rights, this causes the same problem as the one addressed by Ilya's argument;

    "a central purpose of judicial review is to protect constitutional rights in situations where elected officials are unwilling or unable to do so."

    Elected officials could just as easily fail to legislate preenforcement review for constitutional rights that they don't care about (or don't think actually exist) while loading up on laws that are chock full of preenforcement review for constitutional rights that they hold in high regard.

    Sachs still won't likely say that he believes that protecting sovereign immunity and judicially-created rules against enjoining state judges are more important principles than ensuring judicial protection for constitutional rights.

    Instead, he'll likely say that judicial protection for constitutional rights via preenforcement review is just not a principle in and of itself, but rather that it needs to be derived from a more foundational principle.

    I agree with Ilya, that judicial protection for constitutional rights via preenforcement review is a principle itself, that needs no further justification, and is consistent with the constitution.

    I also agree that dependence on legislators to legislate something that would somehow ultimately allow for preenforcement review for some constitutional rights but not others is misplaced. When it comes to constitutional rights, they all must be equally protected regardless of what legislators do. It follows that judicial protection is the only mechanism than can do this work.

  9. Somin argues that cleverness does not trump getting the desired result. The old "clever by half" idiom as a slur.

    That's not what most of us understand as a "constitutional republic".

  10. SB8 is perfectly subject to post-enforcement review, and the upshot of such review can be some new standard that prevents SB8 type laws going forward. So I really don't see why it's so incredibly important that pre-enforcement review be available.

    Because it is chilling the exercise of a constitutional right in the present? Even if I were to concede for the sake of argument that abortion really IS a constitutional right, (Certainly, the lower courts have been obliged by the Supreme court to act as though it were one.) constitutional rights being chilled while post-enforcement review wends its way through the courts is perfectly ordinary.

    In fact, the Court itself is rather casual about prolonging the period during which such rights are chilled, for OTHER rights. It's perfectly content to refuse cert to cases while they 'mature' in the lower courts, even though this may involved the rights of millions being violated.

    So why the flaming hurry for abortion 'rights'? Because it's the super-right before which all standards must fall?

    1. I think a giveaway is that both traditional frivolous lawsuits rules and state constitutional standing rules are waived. The purpose of the statute isn’t to permit civil lawsuits to redresss grievances. It’s to permit civil lawsuits that do nothing but harass.

      There is no post-enforcement review under the statute. It is apecifically forbidden byt the statute. Defendants in these lawsuits are not permitted to get injunctions or damages against plaintiffs who file frivolous, malicious, or harassing lawsuits. The statute is specifically designed not just to permit but to encourage them.

      That alone makes this statute different from any other civil law scheme in existence.

      1. There's no post-enforcement review under the statute, and post-enforcement review in the federal courts is perfectly capable of declaring that unconstitutional. Remember, the state courts might be bound by SB8, assuming they don't find it to violate the Texas constitution. The federal courts aren't.

        1. If, as ReaderY asserts, SB8 waives state constitutional standing rules, the SCOTUS should certify the question to SCOTX if SB8, as matter of law, does so. A ruling in the affirmative would negate the need for SCOTUS to rule on the merits at this time.

          As for waiving traditional frivilous lawsuit rules, that can be resolved in Texas state courts.

        2. This contention is false.

          State trial court judges are bound by the federal constitution as much as federal judges (per oath of office) and if the federal constitution supplies the determinative rule of decision, such as when unconstitutionality is raised as an affirmative defense, the relevant SCOTUS precedent must be given effect. If it's not raised it is waived by the defendant. And if a trial court judge doesn't follow binding SCOTUS precedent, well then there are appellate courts to correct error.

          As for standing, Article III does *not* apply to Texas state courts because that Article is specifically directed to federal courts. But the Texas Supreme Court has previously taken inspiration from Lujan (without being obligated) and may or may not continue to do so when faced with an appeal from an SB8 case.

          Standing to sue in state courts is a question of state law to be decided by the court of last resort on state-law questions in civil cases unless the statutes in question itself spells out standing rules. In the latter case, the SCOTUS might be asked to determine whether the statutory standing rule is valid under the state constitution. (For criminal law questions Texas has a separate Court of Criminal Appeals).

          Nor would there be anything novel about it. The Texas Supremes have previously dealt with the matter of standing under chapter 153 of the Texas Family Code. See In re Derzapf, 219 S.W.3d 327 (Tex. 2007)(“Because Randy is not a biological or an adoptive grandparent, he lacks standing to seek grandparent access under section 153.432 of the Family Code.’)

          “The grandparent access statute explicitly sets forth who may sue for access, and Randy did not meet those criteria. We cannot conclude that he has a justiciable interest in the controversy sufficient to override the statutory text permitting only biological or adoptive grandparents to seek access pursuant to the standards set forth in section 153.433. We conclude that the trial court abused its discretion in concluding that Randy had standing and in ordering that he have access to the children.”


          Also see Troxel v. Granville, 530 U.S. 57, 67, 72, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion)(noting the "breathtakingly broad" scope of the Washington statute at issue, which permitted "any person" to sue for access) (citation omitted).

          1. The problem here is the Supreme Court’s decision in Havens Realty v. Coleman, which endorsed a very expansive conception of standing in federal private attorneys general cases.

            In this housing discrimination case, the Supreme Court accepted an activist group (HOME)’s contention that it really wanted to be engaging in education and counseling, but housing discrimination interfered with its educational and counseling misison by removing the opportunity to acquire homes that it could be educating and counseling about.

            It seems to me that an anti-abortion activist group could similarly argue that it really wants to educate and counsel people about their babies, but the presence of abortion interferes with this mission by removing babies that it could be educating and counseling about.

            I suspect Havens Realty may not have been the best of decisions given how wildly expansive its conception of standing was. But if what’s sauce for the goose is sauce for the gander, and we interpret precedent fairly and without regard to our ideological predilictions, then it seems to me that if HOME had standing to sue, then anti-abortion groups also have standing to sue by the same principles.

            1. It seems to me that an anti-abortion activist group could similarly argue that it really wants to educate and counsel people about their babies, but the presence of abortion interferes with this mission by removing babies that it could be educating and counseling about.

              That's a far overbroad reading of Havens Realty, and if you think this court is going to be expanding standing, think again.

    2. I don’t think it is so much that abortion is a “super-right,” but rather some of the specifics of this bill. In particular, I think the Supreme Court had a major issue with the fact that it is explicitly not a defense that the procedure was legal under Roe or Casey when the procedure was performed if either are subsequently overruled. Laws limit constitutional rights all the time (see most civil forfeiture laws), but none are so brazen that it also makes it impossible to obtain meaningful post-enforcement review. Turning away from the issue of abortions, the Supreme Court has also not been a fan of arguments waiving rights especially when non-lawyers are making the call (see Constitutional challenges to Social Security Administration ALJ’s).

      1. As I said to Reader Y, SB8 can say whatever it likes about what isn't a defense, but the federal courts, in post-enforcement review, are perfectly capable of finding those provisions unconstitutional.

        We're not discussing whether SB8 is found unconstitutional, but the procedural details of how we get there. Pre-enforcement review isn't necessary to get there.

        And, again, the Supreme court routinely lets constitutional rights be violated on a mass basis, just because they don't feel like taking a case on a topic yet. Explicit constitutional rights, grossly violated. For years, even!

        So, let's not pretend the Supreme court normally treats constitutional rights being violated as some kind of existential emergency requiring a deviation from normal order. They don't. They normally treat their own convenience as more important.

        But, again, abortion is different, because.

        1. In the meantime the doctor is exposed to potentially crushing fines and legal fees for the CHANCE that a Federal Court MIGHT decide to listen and agree with him/her? That is suddenly going to stop the creditors trying to foreclose on his/her house, adverse credit ratings, etc.? Yep, that is some choice.

          1. You seem to fear many things that won't happen. I'm guessing you watch CNN and believe their hoaxes.

          2. In the meantime the bump stock owners were subject to potential felony charges for simply refraining from destroying without compensation lawfully acquired property, on the basis of a regulatory demand that was facially in direct conflict with the text of the statute it was supposedly based on.

            Felony charges, mind you, not just a fine.

            "“But waiting,” Gorsuch concluded, “should not be mistaken for lack of concern.”

            Sure as hell looked like a lack of concern to anybody being forced to destroy their lawful property or become felons.

            I repeat: The Supreme court routinely lets explicit constitutional rights be chilled, outright violated, for years at a time. They've never treated this as the sort of emergency requiring a departure from regular order, or, really, even lifting a finger to stop it.

            Is abortion a super-right, entitled to better treatment than the ones you can actually find written down?

          3. This scaremongering borders on nonsense. The Doc's house would be protected by homestead status (exempt property under the Texas constitution) and if a judgment were to be entered, collection efforts could be suspended by posting a supersedeas bond until the appeals are exhausted.

            In case you are referring to a certain San Antonio abortionist who published an op-ed in the Washington Post, be reminded that he goaded the public into suing him so as to generate a test case (why else would he confess to having violated SB8 in a national newspaper?), and that he already had the lawyers on standby to pounce on any "schmucks" that would take his bait (erudite law prof characterization, not mine).

            His potential liability is currently limited to the minimum statutory damages amount of $10,000 for the singular admitted SB8 violation (he says that was the only one, which is consistent with what certain legal scholars recommended by way of academic armchair guidance). And his ready-to-swing-the-bat attorneys petitioned a federal court in Illinois (go figure!) to deposit that amount of "bounty" into its registry. Although a homie in Chicago, Felipe Gomez filed his rather peculiar SB8-invoking action in Braid's home county (Bexar), and has since moved to nix the federal turn-the-tables interpleader gambit because he wants to litigate in Texas. Go figure.

            As for the specter of that massive attorney fee-shift, note that all three "schmucks" are proceeding pro se, so they are not incurring any, leaving the self-confessed SB8 violator with what would appear to be zero exposure to a potential fee shift. And apparently, the "good doctor" (per Gomez, who says he is pro choice and actually rooting for the person he sued along with the abortion seekers) seemingly has the wherewithal to hire lawyers by the dozen to crush the "schmucks". That appears to include some having to apply for pro-hac-vice admission because - you know - they usually practice in Texas, where all three SB8 suits that Braid wants to forum-shop to Chicago are currently pending.

            After all, the Texas Legislature created a private cause of action to be pursued in state courts, one that isn't founded on federal law or a federal question. The Chicago interpleader takes the sue-anytime-anywhere to a whole new level. And it's the abortion provider that's showing the way!

            Why Zoom around 254 counties in Texas when you can efile in a cool venue 1000 miles closer to the North pole?

            All is fair, after all, when it comes to abortion. The ends unquestionably justify the means. Why even bother with such technicalities as jurisdiction and the hassles of federal case or controversy?

            1. The law says: "statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter"

              In other words, if a Judge wanted to award a Judgment in the amount of $1,000,000 (cue Dr. Evil) they could.

              1. Underestimated putative "Schmuck" Oscar Stilley has already game-played it out and can explain it to you.

                The modest proposal envisions a scheme where he would set up a clearinghouse for SB8-proscribed abortions and sell "indulgences" in bulk at a steep discount by underbidding any competitors for the first and only award of statutory damages that will bar the second and any subsequent ones, and cornering the market like the Catholic Church per-Protestantism intent on raising funds for St. Peter's. -- I kid, just a bit.

                That's also the underlying rationale for Braid's interpleader: Liable only once (assuming the same noncompliant abortion) regardless of the number of claimants, ergo minimum 10K nominal amount (and even less in immediate cash depending on what the judgment creditor will take to release the judgment and not have to try to collect on it the tedious way). The injunction portion of SB8 may be more problematic, but perhaps smart people come up with something.

                Regarding the clearinghouse: If a single entity - let's call them ALEC (Abortion Liability Erasure Center) promptly gets notified of each abortion in the ordinary course of claims and indulgence processing, center operatives can quickly obtain a damage-preclusive agreed SB8 judgment from Texas district court systems interested in doing volume business and then release/sell it for pennies on the dollar to the abortion provider/funder, who will then be in the clear for any wild-card secondary claims predicated on the same abortion. Cost of doing business. Okay, so maybe Stilley was just thinking out of the box (cell), now that he can breathe more freely on his porch even if thethered to an iron chain. Or perhaps I didn't quite follow his train of thought and got sidelined.

                Regarding the other scenario: a judge awarding wildly more than 10K, and further assuming it can't be handled satisfactorily by settlement at a reasonable discount, the amount could presumably be challenged on the basis of excessive fine or due process (as with punitive/exemplary damages) along with any and all other substantive defenses that weren't successful in the trial court. But those defenses will presumably be deployed and fully litigated in any event before any abortion provider is ready to pony up voluntarily to satisfy a money judgment.

              2. The next clause reads, "(c) Notwithstanding Subsection (b), a court may not award relief under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion performed or induced in violation of this subchapter, or for the particular conduct that aided or abetted an abortion performed or induced in violation of this subchapter."

                So, you could hire a plaintiff to sue you for $1 in damages each time you performed an abortion, pay him the full $1, and you'd be immune to further damages, assuming that the "not less than" isn't a scrivener's error, and "not more than" wasn't intended.

                I think 'not more than" actually fits better with that next clause, because if the damages are open ended, there isn't any "full amount" you could pay.

                1. I would think the "full amount" would refer to the first/prior judgment, facially speaking. So, in theory that would be at least 10K, but who is going to make a stink if it's an agreed judgment in a lesser amount? Perhaps it could be brought up in the subsequent suit, if any, when the abortion provider/funder defendant goes: You are out of luck, I already paid.

                2. Not following you, or WPHDM's claim that "...potential liability is currently limited to the minimum statutory damages amount of $10,000 for the singular admitted SB8 violation." There's no reason I can see why "damages" are limited to $10k, and I believe the first suit against Dr, Braid (the OK one) asked for $100k. That's indeed one of the reasons why the interpleader suit is so erroneous -- to pursue it Dr. Braid needs to put up the amount at issue, and the IL suit dodn't ask for any specified amount, so Braid's offer to deposit $10k might be insufficient even if you ignore the fact that there is NO known amount at issue until the TX courts make an award.

            2. His potential liability is currently limited to the minimum statutory damages amount of $10,000 for the singular admitted SB8 violation

              Someone in this discussion might want to look up what the word "minimum" means in the dictionary.

              1. Someone in this discussion might want to look up what the live state-court pleadings actually say. Of course, if you rely on biased source that is a party to the lawsuit (or directing it from behind the scenes), the predicate pleadings of the opponents may not be posted on the entity's website if they don't support the desired bounty-hunter narrative or other public-relations goals.

                You might be surprised to discover that Felipe Gomez doesn't even ask for any damages, and was too cautious to even assert a claim founded on SB8. His state-court case in Texas is nevertheless the pretext for filing the interpleader in Chicago because Gomez lives there. Not to mention that he is not adverse to the doctor and doesn't present a case or controversy. And zero dollars in damages doesn't even meet the ridiculously low $500 threshold for federal interpleader (compare to $75K for regular diversity jurisdiction). Nor does Gomez even have a claim for attorney's fees that could conceivably be added to the nonexisting amount in controversy (which of course wouldn't be liquidated in any event because the fee amount would clock under the lodestar). That's because he is proceeding pro se (thereby avoiding to need for pro hac vice admission in Texas, which would cost him some money). And unlike Stilley, he didn't even pay the filing fee in Texas, petitioning on an IFP basis instead.

                In an effort to create a controversy in his suit in Bexar county, Gomez is trying to import the United States and the State of Texas into his case as parties who are currently doing battle elsewhere. They have so far rebuffed or ignored his entreaties.

                Finally, how can Gomez's claim for a SB8 validity determination under the Texas Declaratory Judgments Act (not to mention as a nonadverse party vis-a-vis Dr. Braid without standing) provide a basis for an interpleader concerning a fixed sum of money subject to competing claims? - I don't know ... just scratching my head and chalking it up to "Abortion Absolutism". No rules or jurisdictional impediments will stand in the way!

                Let me suggest the obvious here: That the Texas court system doesn't need intervention from a court 1000 miles farther afield. What Braid's attorneys have contrived is a proposed solution to a nonexistent problem. Not to mention that he wants to be a claimant to the deposited $10,000 himself, appearing -- as it were -- on both sides of the docket and joining the fray. No doubt the Abortion Absolutists will call this clever. He might was well have sued himself under SB8. Braid, the person within the meaning of SB8, Plaintiff vs. Braid, MD the self-proclaimed SB8 violator, Defendant.

                And contrary to Gomez's theory, the purported contest for a single authorized monetary penalty for the same SB8 violation (if that it be, which is a fact question) isn't resolved based on who filed first, but by the first-in-time judgment for damages entered and paid.

                And Braid's Texas attorneys could avoid a need to seek pro hac vice admission in an Illinois USDC if they were to just show up and defend Braid's cases in Texas. A single attorney would do, who could handle the case from the confort of the home or home office in Houston, since Texas courts now conduct buisness via Zoom in addition to having taken and processed filings in civil cases via the Texas efile system for years. He has 12 attorneys on his dubious interpleader complaint. What for? That's another headscratcher.

        2. The basic issue, as Justice Barrett got the Texas Attorney General to admit, is that the Texas court system under SB8 provides no way for a defendant in an SB8 lawsuit to obtain what Justice Barrett called “general relief.” If the defendant wins the suit, all that happens is the suit is dismissed. Not only can’t the defendant recover the costs of defending, they can do nothing to prevent another plaintiff to file another suit which could only be dismissed after another round of proceedings and costs to the defendent. And this continue indefinitely.

          This feature, the inability to obtain general relief, and the inapplicability of a win to lessen the burden against even the next plaintiff, is what makes this law so much more burdensome than other laws, and distinguishes this law from other laws.

          Libel laws don’t have this feature. Even in the absence of SLAPP laws, somebody filing a patently meritless libel suit faces sanctions and abuse of process countersuits. SB8 relieves plaintiffs from having to face any consequences for their actions. That’s what makes this law special.

          1. Right. And I'd agree that there are a number of features of this law which ought, properly, be declared unconstitutional.

            And could be as a result of post-enforcement review in the federal courts.

            1. And could be as a result of post-enforcement review in the federal courts.

              Wrong. First, "the federal courts" cannot hear post enforcement challenges; only the Supreme Court can hear appeals from state court. Second, if the abortion providers win in state court, they can't appeal at all.

              So if individual abortion opponents keep serially filing lawsuits against the same abortion provider over the same abortion, and the state courts rule in favor of the abortion providers, and the opponents don't appeal, then the abortion providers must defend each lawsuit, must incur the legal costs for each lawsuit, but can never challenge the law itself in federal court.

              1. Assuming that the TX courts refuse to bar nuisance suits, the costs of defending them would anyway be, as I've already observed, de minimus. A fill-in-the-blank filing offered pro se would suffice. For a Casey-compliant abortion the undue burden defense is unassailable assuming only that the TX courts follow the law.

                1. Given that SB8 expressly authorizes such nuisance suits, on what grounds would the Texas courts bar them?

                  the costs of defending them would anyway be, as I've already observed, de minimus.

                  I don't know what kind of lawyer you pretend to be, but I don't work for free. (Even if there are activist lawyers prepared to represent defendants in these cases pro bono, the number of potential plaintiffs is a lot bigger than the number of pro bono lawyers.)

                  A fill-in-the-blank filing offered pro se would suffice.

                  1) Business entities cannot be pro se.
                  2) If I have a minimum of $10,000 riding on a case, I am certainly not relying on a fill-in-the-blank filing. There's no res judicata defense available, so just because a motion to dismiss worked once doesn't mean it will work every time. As the IRA once said after a failed assassination attempt on Margaret Thatcher: "Today we were unlucky, but remember we only have to be lucky once. You will have to be lucky always."

                  For a Casey-compliant abortion the undue burden defense is unassailable

                  And once again: this. is. not. true. SB8 limits how that defense can be raised.

          2. No, SLAPP laws were created exactly because of this. There is nothing in the Constitution that saves us from nuisance libel suits. And libel is much trickier to deal with than abortion because the truth of the statement in question is not a medical record, or any sort of real record much of the time.

            Plus, it is not like NYT v. Sullivan's extremely lenient standard (its been expanded by the courts even more than the original panel probably ever intended) is going to be good law forever. It too might one day have a Casey of its own, and if its pared back even a little CNN and Fox will be in hot water, let alone if its rolled back to the 18th and 19th century norms. Then we'd have a total collapse of all media under crushing lawsuits.

        3. Post-enforcement review of a state court judgment is not available in federal courts other than SCOTUS, per Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). And Supreme Court review by writ of certiorari is discretionary rather than as of right.

          1. If any abortionist is successfully sued for a Casey-compliant abortion in TX I assure you that four Justices will be found to grant cert, LOL!

        4. As I said to Reader Y, SB8 can say whatever it likes about what isn't a defense, but the federal courts, in post-enforcement review, are perfectly capable of finding those provisions unconstitutional.

          They are not. You don't understand our legal system. There is no mechanism for getting the federal courts to hear them.

            1. Only SCOTUS can hear appeals from state courts.

  11. C’mon. Did you even listen to the oral argument? The Supreme Court is not going to overrule Ex Parte Young, and it’s not going to permit suing a state’s judicial branch.

    This whole discussion isn’t just about nothing. It at this point risks being actively misleading.

    1. Okay, no suit against a state's judicial branch. How about criminal charges? There is a federal statute against depriving someone of a civil right under color of law. Can state judicial officers be charged?

      1. Is there an established civil right not to be sued in state court? Even over stupid stuff? I don't think so.

      2. There is absolute judicial immunity over judicial acts.

        The remedy for a wrongheaded court order or judgment is an appeal, not prosecution of the court officials.


          Amen. The Texas Supreme Court said as much last year.
          See here: In re Greg Abbott, Governor, and Ken Paxton, AG, 601 S.W.3d 802 (Apr. 23, 2020).
          No. 20-0291 if you want to look up the docke with briefs.

          "We acknowledge the plaintiff judges' allegation that they face a threat of criminal prosecution if they do not follow the executive order. Any threat to prosecute a judge for his or her judicial decisions raises grave separation-of-powers concerns. The judges, however, do not explain why well-established principles of judicial immunity are insufficient to counter such threats. Troubling as these threatened prosecutions would be, the defendants have disclaimed any such intention, and the judges have not shown a credible threat they actually will be prosecuted. As a result, even if a threat of prosecution could give a judge standing to challenge a substantive legal standard, the alleged threat of criminal prosecution in this case does not give the judges standing to seek the invalidation of GA-13. We therefore conditionally grant mandamus relief."

        2. Absolute judicial immunity applies to actions for damages, not those seeking injunctive relief.

          1. Feel free to find any example of all State judges being enjoined against hearing cases arising under any State law.

      3. What Kavanagh, Barrett, and Thomas talked about was distinguishing between a civil litigation system (where private parties sue to redress their own personal grievances) and a private attornies general system (where private parties with little or no personal stake in the matter sue to enforce state policies, with their winnings a bounty for enforcement rather than compensation for their own injuries). Thomas suggested that in a private attorneys general scheme, private attornies general could be considered state agents under Ex Parte Young. Kagan suggested that they could be considered agents or associated of the public attorney general, so the Attorney General and agents or associates could be sued without having to name them individually.

        All this strongly suggested a broad swath of the court was looking for a way that the clinics would have someone to sue in a pre-enforcement suit, without having to sue the state’s judicial branch. They were looking for a way to do the job by slightly extending Ex Parte Young rather than contradicting or overruling it.

        1. I think that a modest extension of Ex Parte Young is the easiest way of dealing with this. The Texas statute is a private-attorney-general mechanism. The private citizen has no private interest in stopping abortion, he is merely vindicating the law of the State of Texas. SB8 basically allows any private citizen to appoint themselve a representative of the State, and then collect a $ 10,000 bounty for each violation. (You could have the same thing for a parking ticket -- a citizen could be granted authority to write one, and then split the fine with the State or municipality.)

          The only difference between this and Ex Parte Young is we right now do not know which individual is going to appoint himself/herself to the position. IMO, that should not make a difference -- enjoin anyone who decides to take the position in the future.

          Suppose someone sues the AG in a regular Ex Parte Young situation and obtains an injunction. Then a new AG is elected (or appointed by the governor, depending on your state). Is the new AG entitled to ignore the injunction? Does the plaintiff have to file suit again every time there is a new AG? I don't think so.

        2. "They were looking for a way to do the job by slightly extending Ex Parte Young rather than contradicting or overruling it."

          The word "slightly" doesn't mean whay you purport it to mean.

          And there's no reason to do this. If any abortionist is required by the TX courts to pay $10,000+ for performing a Casey-compliant abortion (Casey having remained good law) that will be time enough for SCOTUS to hear the case. That would, however , violate SB8 and there is no reason to think it will happen.

      4. I think the answer to your question is no. Could federal judges be charged with a crime simply for hearing a federal lawsuit based on an unconstitutional statute? I think the answer is no. more than that, I think if the executive had the power to charge judges with crimes simply for hearing lawsuits the executive didn’t want heard, the judiciary’s ability to serve as a check on the executive would be crippled. That’s why the constitution is so careful to provide for judicial independence, impeachment as the sole means to remove judges, etc.

        You have to find a way to thread this needle without crippling the judiciary’s ability to do its job because of something the legislature did.

    2. It is not necessary to overrule Ex parte Young, only to modify the obiter dictum therein prohibiting suits against state court judges when there is no other available remedy.

      1. For the reasons I explained in earlier comments, it isn’t necessary to do that.

  12. Could you stay the resulting judgments rather than stay the filing of the suit?

    If SCOTUS precedent is as clear as people claim, why not a declaratory injunction against lawsuits for abortions prior to 20 weeks?

    1. Well, for starters, because some applications of SB8 aren't unconstitutional.

    2. Although the media routinely assumes and states otherwise, the proscription of abortions under SB8 does not hinge on gestational age, but on the detectability of a heartbeat (as more specifically defined by the statute text). That also means that a fetus post-6-weeks and even a large one close to full term may be extracted regardless of gestational stage in a situation where fetal demise has already occurred due to natural causes prior the required testing for a heartbeat.

      1. "SB8 makes it legal to have an abortion if you don't need an abortion."

        1. "SB8 makes it legal to have an abortion if the abortion is already legal under SCOTUS precedent."


    3. Yes, the appellate court can stay judgments pending appeal.

    4. I think the question before the Supreme Court is who (if anyone) the clinics are entitled to sue to obtain such an injunction given the way the law is structured. The law is structured, and carefully, in a way calculated to insulate all the parties one might normally sue to obtain such an injunction from suit. If you can’t sue someone, you can’t enjoin them either.

      That’s the fundamental underlying problem and the reason the case is in the Suoreme Court.

        1. Because a unique feature of this law is it overrides the ordinary provisions forc sanctions for filing frivolous lawsuits. There is no penalty for filing suits for the sole purpose of harassment rather than to redress any legitimate grievance. As Justice Barrett got the Texas Attorney General to admit, if a judge rules against a plaintiff, nothing prevents a new plaintiff from filing a nearly identical lawsuit and starting all over again. The purpose seems to be to force spending time and money defending frivolous lawsuits.

          It’s not about what you think of abortion. What would you do if a blue state passed the same kind of law except it permits filing these suits against people who vote Republican?

          1. Pray quote the provision of SB8 that prevents TX courts from sanctioning frivolous SB8 suits.


  13. Maybe the SC could just get rid of "citizen enforcement".

    Injury free torts wouldn't seem something worth a whole lot of defense.

    1. There is a federal qui tam statute that allows for private citizens to sue in federal court against someone defrauding the federal government. The Supreme Court upheld that in Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S. 765 (1999).

      Not to mention that state courts are not bound by the Constitution's "case and controversy" requirement for federal courts.

      1. Sorry, it is "case or controversy."

    2. "Maybe the SC could just get rid of 'citizen enforcement'".

      SCOTUS can do anything it wants, apparently. But on what grounds?

  14. Correct me if I'm wrong, but isn't the whole issue that the court system has set up precedent in such a way that states are legally forbidden to challenge the Roe precedent in court? If the DA isn't allowed to prosecute then there can be no trial cases to clarify or overturn a previous ruling.

    1. Without committing to whether I think Roe was correctly decided, why should states get to directly challenge SCOTUS precedent? SCOTUS has spoken, so that's what the law says, whether you like it or not.

      Overturning a SCOTUS ruling should only be allowed to come up in a context where that ruling is indirectly implicated by a controversy. Direct challenges shouldn't be allowed, because once SCOTUS has said what the law is, it's settled.

      (FWIW: Yes, I agree with the result in Roe, but no, I think the decision was poorly reasoned and wrong as a matter of law. But my opinion doesn't particularly matter, since I don't have the power to say what the law is).

      1. "SCOTUS has spoken, so that's what the law says, whether you like it or not."

        "He makes war on the decision of the Supreme Court, in the case known as the Dred Scott case. I wish to say to you, fellow-citizens, that I have no war to make on that decision, or any other ever rendered by the Supreme Court. I am content to take that decision as it stands delivered by the highest judicial tribunal on earth, a tribunal established by the Constitution of the United States for that purpose, and hence that decision becomes the law of the land, binding on you, on me, and on every other good citizen whether we like it or not. Hence I do not choose to go into an argument to prove, before this audience, whether or not Chief Justice Taney understood the law better than Abraham Lincoln. (Laughter.)"

        /Stephen Douglas, 1858


      2. It seems this only applies to abortion though. Gun restriction laws, for example, are not automatically ruled null and void and refused their day in court. People joke about super precedent, but it looks like that is exactly what has happened.

    2. Of course there are cases. All the time. That's how Roe got replaced by Casey.

      Also, DAs don't have any involvement with bringing suit under SB8.


    With each passing day the SB8 litigation discourse seems to be getting more inane.

    Now we have reached the point where lawyers (see above) are complaining about the prospect of making money defending the flood of SB8 lawsuits in case there aren’t enough of their colleagues that will step up to the plate and do it for free (i.e., pro bono medico, rather than pro bono publico). Supporting evidence: Corporate defendants need attorneys to represent them in court.

    And looking out at that incoming lawsuit tsunami threatening to crush the abortion industry: A total of three (N=3) in the two months since the Sep 1 effective date.

    Meanwhile, soon-to-be legendary Abortion Cult Saint Alan Braid has retained 12 licensed advocates for his interpleader, so that it a ratio of 4 to 1.

    Four (4) officers of the court to finish off each pro-se “bounty hunter”. And one of the “schmucks” doesn’t even want the bounty. Or wants to donate it back to “the good doctor” for cookie points … or just in homage to the cause.

    So again:

    Why didn’t Braid just sue himself? Braid, the person, Plaintiff vs. Braid the confessed SB8 violator, Defendant. Get your test-case ruling in a court of sympathy, and have the 10K refunded from the courtly escrow account when Lady Justice is done playing her part in the charade.

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