The Volokh Conspiracy
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Texas State Court Rules SB 8 Enforcement Mechanism is Unconstitutional
The ruling is mostly based on the Texas state constitution and probably will not affect the federal case challenging SB 8, currently before the Supreme Court. But it makes some notable points, nonetheless.
Today, Texas state trial Judge David Peeples issued a decision in Van Stean v. Texas Right to Life, holding that the controversial enforcement mechanism of the Texas anti-abortion law, SB 8, is unconstitutional. As with the SB 8 case currently before the federal Supreme Court, this state court ruling focuses on SB 8's unusual enforcement mechanism. It doesn't address the constitutionality of the abortion restriction itself.
SB 8 delegates enforcement authority exclusively to private litigants, who each stand to gain $10,000 or more in damages every time they prevail in a lawsuit against anyone who violates the law's provisions barring nearly all abortions that take place more than six weeks into a pregnancy. As I have explained in various previous posts on SB 8 (e.g. here and here), the purpose of this unusual structure is to evade judicial review by making it impossible for abortion providers to sue the state to block enforcement of the law.
In a state lawsuit challenging SB 8 brought by fourteen different abortion providers, Judge Peeples has ruled that SB 8's enforcement mechanism is unconstitutional for three reasons: it authorizes lawsuits by parties who do not have standing because they have not suffered any injury; it is "an unconstitutional delegation of enforcement power to private parties;" and the $10,000 civil penalty qualifies as punishment without due process. Judge Peeples decided the former two issues under the Texas state Constitution. But the due process ruling is under the Due Process Clause of the Fourteenth Amendment.
A notable part of today's ruling is the section (pp. 12-13) where Judge Peeples emphasizes that, if it is upheld, the SB 8 strategy for evading judicial review can be used to attack a wide range of other constitutional rights: "[I]f SB 8's civil procedures are constitutional, a new and creative series of statutes could appear year after year, to be enforced by eager ideological claimants, who could bring suit in their home counties… Pandora's Box has already been opened a bit, and time will tell."
He methodically describes how SB 8-like mechanisms can be turned against gun rights, free speech rights, and rights to religious liberty, like those relied on by people with religious objections to baking cakes for same-sex wedding celebrations:
SB 8 raises an obvious concern: if its civil procedures are constitutional for abortions, they will be constitutional for other targets. Other states (or future Texas Legislatures) might copy and paste them onto other substantive provisions to drive undesired activities out of business. In our polarized country, other states with different electorates and different priorities might decide to use these procedures to put other people out of business or to stamp out behavior they dislike intensely, including other areas of life covered by constitutional law….
State A could copy the procedures and replace the abortion provisions with language that forbids openly carrying guns, or with language requiring trigger locks on all guns…
State B might use the procedures to enforce discrimination laws against bakery owners who will not, as a matter of conscience, decorate a cake with a message that is offensive to them or that violates their religious beliefs…[citing the Masterpiece Cakeshop case]… To be effective, this statute would need to cover the bakery and its "aiders and abetters" (aka employees, suppliers, financial backers), who might quickly decide it is best to stop helping the bakery discriminate and thereby avoid these lawsuits….
The courts might eventually uphold the baker's right not to be compelled to speak a message he disagrees with, but he and others like him and his employees might be bankrupted in the meantime. The procedures could be used not only to put people out of business, but to attack a disputed area of constitutional law that a legislature passionately disagrees with, like the First Amendment. Statutes could adapt these procedures to single out climate change deniers, or those who utter "hate speech," or American History teachers who teach X or don't teach X. We are a diverse and creative people, and it seems naive to hope these procedures will be cabined voluntarily once they are upheld.
As Judge Peeples notes, SB 8 authorizes lawsuits not only against abortion providers, but also anyone who "aids or abets" them. If a similar law were used to target bakers, it could also encompass their employees, suppliers, and others. Conservatives who fear blue states might make theologically conservative bakers "bake that cake" have reason to fear the precedent SB 8 will set. And the same goes for people concerned about gun rights, free speech rights, and virtually any other constitutional right that might be targeted by either the left or the right.
The slippery slope threat of SB 8 has been outlined previously, most notably in an excellent Supreme Court amicus brief by the Firearms Policy Coalition, and by several justices in the Supreme Court oral argument. But Judge Peeples' analysis of this issue is particularly thorough, especially in emphasizing how the "aid or abet" provision of SB 8 makes things worse.
Today's ruling is merely a declaratory judgment limited to the parties. It does not issue an injunction against SB 8 lawsuits generally. Thus, it isn't binding on other potential SB 8 litigants. It also, of course, does not affect the federal case before the Supreme Court. Whereas the Texas case is primarily focused on whether SB 8 violates various requirements of the state constitution, the federal litigation about whether abortion providers or the federal government can challenge SB 8's constitutionality in federal court before a private party sues them. In addition, Judge Peeples' ruling is going to be appealed. We do not yet know what higher Texas courts will say on these issues.
Nonetheless, the ruling makes some useful points that the federal Supreme Court justices would do well to take note of. In addition, it could well serve as a precedent that other Texas courts will follow in assessing SB 8 cases. The decision also outlines ways in which SB 8-like statutes can potentially be challenged under state constitutions, though the strength of such arguments is likely to vary from state to state, depending on their state constitutional jurisprudence.
