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Abortion

A Murky Decision in the Texas SB 8 Case

The Court rules that the lawsuit against SB 8 can proceed by targeting state licensing officials. But the implications for future cases are far from completely clear.

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This morning, the Supreme Court issued its ruling on Texas SB 8, the controversial anti-abortion law structured to evade judicial review. As I have explained in previous posts (e.g. here and here), the key issue at stake in this case is whether Texas can evade judicial review by limiting enforcement authority exclusively to private parties. SB 8 seemingly bars enforcement by state officials, and instead delegates it  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. If Texas' ploy succeeds, it would set a dangerous precedent for insulating attacks on other constitutional rights from judicial review.

Today's Supreme Court decision in Whole Woman's Health v. Jackson, allows preenforcement lawsuits against SB 8 to go forward, but only against state medical licensing board officials, who - eight of nine justices conclude - still have some potential enforcement authority under SB 8. It denies relief against the Attorney General of Texas, state judges, state court clerks, and the one private litigant who was a defendant in the case. The plurality opinion by Justice Neil Gorsuch, joined by three other conservative justices (Barrett, Kavanaugh, and Alito) concludes that relief against the AG is impermissible because of state sovereign immunity, and relief against the clerks is not allowed because the latter's interests are not genuinely "adverse" to those of the abortion providers challenging SB 8:

Private parties who seek to bring S. B. 8 suits in state court may be litigants adverse to the petitioners. But the state-court clerks who docket those disputes and the state-court judges who decide them generally are not. Clerks serve to file cases as they arrive, not to participate as adversaries in those disputes. Judges exist to resolve controversies about a law's meaning or its conformance to the Federal and State Constitutions, not to wage battle as contestants in the parties' litigation. As this Court has explained, "no case or controversy" exists "between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute." Pulliam v. Allen, 466 U. S. 522, 538, n. 18 (1984).

On the other hand, Justice Gorsuch concludes that the plaintiffs can bring a preenforcement action against state medical licensing officials. On this issue, eight of nine justices agree with him (all but Justice Thomas):

While this Court's precedents foreclose some of the petitioners' claims for relief, others survive. The petitioners Thomas, Allison Benz, and Cecile Young. On the briefing and argument before us, it appears that these particular defendants fall within the scope of Ex parte Young's historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas's Health and Safety Code, including S. B. 8. See, e.g., Tex. Occ. Code Ann. §164.055(a); Brief for Petitioners 33–34. Accordingly, we hold that sovereign immunity does not bar the petitioners' suit against these named defendants at the motion to dismiss stage.

Gorsuch goes on to reject Justice Thomas' solo dissent arguing that the licensing officials are not proper defendants:

JUSTICE THOMAS suggests that the licensing-official defendants lack authority to enforce S. B. 8 because that statute says it is to be "exclusively" enforced through private civil actions "[n]otwithstanding . . . any other law." See Tex. Health & Safety Code Ann. §171.207(a). But the same provision of S. B. 8 also states that the law "may not be construed to . . . limit the enforceability of any other laws that regulate or prohibit abortion." §171.207(b)(3). This saving clause is significant because, as best we can tell from the briefing before us, the licensing-official defendants are charged with enforcing "other laws that regulate . . . abortion."

Consider, for example, Texas Occupational Code §164.055, titled "Prohibited Acts Regarding Abortion." That provision states that the Texas Medical Board "shall take an appropriate disciplinary action against a physician who violates . . . Chapter 171, Health and Safety Code," a part of Texas statutory law that includes S. B. 8. Accordingly, it appears Texas law imposes on the licensing-official defendants a duty to enforce a law that "regulate[s] or prohibit[s] abortion," a duty expressly preserved by S. B. 8's saving clause…..

JUSTICE THOMAS advances an alternative argument. He stresses that to maintain a
suit consistent with this Court's…. precedents, "it is not enough that petitioners 'feel inhibited' " or " 'chill[ed]' " by the abstract possibility of an enforcement action against them….  Rather, they must show at least a credible threat of such an action
against them…. [W]e agree with these observations in principle and disagree only on their application to the facts of this case. The petitioners have plausibly alleged that S. B. 8 has already had a direct effect on their day-to-day operations….. And they have identified provisions of state law that appear to impose a duty on the licensing-official defendants to bring disciplinary actions against them if they violate S. B. 8. In our judgment, this is enough at the motion to dismiss stage to suggest the petitioners will be the target of an enforcement action and thus allow this suit to proceed.

If the plaintiffs prevail in their lawsuit against the licensing officials,  they will, most likely, be able to get an injunction that applies only against those defendants.  But the precedent set can then be used to defend against lawsuits by private SB 8 litigants, and thus should eliminate all or most of the "chilling effect" created by SB 8.

This should enable the plaintiffs to get relief against SB 8, should federal courts ultimately rule it unconstitutional on substantive grounds. As Justice Gorsuch notes, there is also preenforcement state-court litigation against SB 8, which just yesterday resulted in a decision ruling against its enforcement mechanism. One way or another, the SB 8 ploy is likely to fail to insulate SB 8 itself against preenforcement review. The big question, however, is whether Texas and other states can successfully insulate other similar laws from judicial review.

Justice Sotomayor's partial dissent on behalf of the three liberal justices raises the possibility that states can do just that, simply by going farther than SB 8 did in precluding enforcement by government officials:

My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas' challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them…..

[B]y foreclosing suit against state-court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas' scheme in the future to target the exercise of any right recognized by this Court with which they disagree.
This is no hypothetical. New permutations of S. B. 8 are coming. In the months since this Court failed to enjoin the law, legislators in several States have discussed or introduced legislation that replicates its scheme to target locally disfavored rights. What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing "private" litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials? Perhaps nothing at all, says this Court. Although some path to relief not recognized today may yet exist, the Court has now foreclosed the most straightforward route under its precedents. I fear the Court, and the country, will come to regret that choice.

This is a genuine danger. It is the main reason for my own support for the SB 8 plaintiffs, as well as that of many others concerned about the threat to other constitutional rights. On the other hand, given the reach of the modern regulatory state, litigants will often - perhaps almost always - be able to find some state or local regulatory official of some kind, who has some kind of tangential connection to enforcement of the law in question. For example, the "religious minority" posited by Justice Sotomayor may be subject to regulation by state officials tasked with enforcing laws involving nonprofit organizations (if the minority's church or other house of worship has nonprofit status), officials regulating land use (if they use property to conduct their services), and so on.

If the tenuous connection between the medical licensing boards and SB 8 is enough to allow the present case to go forward, other indirect connections may be enough, as well. It is, notable, also, that Justice Gorsuch highlights the fact that "[t]he petitioners have plausibly alleged that S. B. 8 has already had a direct effect on their day-to-day operations" as one of the reasons why their case against the licensing officials can go forward. The "direct effect,"  is, of course, brought on by plausible fear of ruinous litigation. If that is a relevant factor in this case, it might be in others, too.

In sum, it may be difficult for states to insulate SB 8-like laws from judicial review, because it may not be possible to foreclose all the ways in which various kinds of state and local officials might have some kind of indirect enforcement authority. All sorts of private organizations and individuals are subject to various kinds of licensing rules, land-use regulations, tax exemptions, and so on. And all of these might have at least a tangential connection to an SB 8-style law.

But the ultimate impact on future SB 8-like laws remains uncertain. We can expect a constant cat-and-mouse game to arise, as state governments try to insulate these types of schemes from judicial review, while private parties targeted by them search for state and local officials to sue, based on some kind of connection to the law. Federal courts will then have to try to sort through the confusion on a case-by-case basis.

The difficulty of resolving future cases is heightened by the fact that there is no one opinion that commands a majority of the Court on the crucial question of which government officials can be sued and why. Justice Gorsuch's opinion has the support of only four justices. Justice Thomas' opinion that would have barred all the anti-SB 8 lawsuits commands only his own vote. Chief Justice Roberts' opinion that would have allowed lawsuits against the Texas attorney general and state-court clerks commands four votes, as well. And Justice Sotomayor's opinion, which would go further than Roberts in some ways, only has the support of the Court's three liberals.

The part of Justice Gorsuch's opinion focusing on the Attorney General, state clerks, and the one private defendant is styled as an "opinion of the Court," and does have the support of a majority. But the most important part going forward is the section on the licensing board officials, which is described only as an opinion by Gorsuch.

Probably, Gorsuch's opinion is the one lower courts will view as binding, under United States v. Marks (1977), which requires them to credit the Supreme Court opinion resolving the case on the "narrowest grounds." But the issue is not a certain one. Moreover, it is not clear how tight a connection between the state regulators and enforcement of the law in question is needed in order to authorize a lawsuit against the former.

All of these problems could have been avoided if only the Court had adopted the sensible position urged by Chief Justice Roberts in his partial concurring opinion:

In my view, several other respondents are also proper defendants. First, under Texas law, the Attorney General maintains authority coextensive with the Texas Medical Board to address violations of S. B. 8. The Attorney General may "institute an action for a civil penalty" if a physician violates a rule or order of the Board. Tex. Occ. Code Ann. §165.101….

The same goes for Penny Clarkston, a court clerk. Court clerks, of course, do not "usually" enforce a State's laws. Ante, at 5. But by design, the mere threat of even unsuccessful suits brought under S. B. 8 chills constitutionally protected conduct, given the peculiar rules that the State has imposed. Under these circumstances, the court clerks who issue citations and docket S. B. 8 cases are unavoidably enlisted in the scheme to enforce S. B. 8's unconstitutional provisions, and thus are sufficiently "connect[ed]" to such enforcement to be proper defendants. Young, 209 U. S., at 157. The role that clerks play with respect to S. B. 8 is distinct from that of the judges. Judges are in no sense adverse to the parties subject to the burdens of S. B. 8. But as a practical matter clerks are—to the extent they "set[ ] in motion the machinery" that imposes these burdens on those sued under S. B. 8. Sniadach v. Family Finance Corp. of Bay View, 395 U. S. 337, 338 (1969).

Justice Gorsuch does highlight other ways in which judicial review remains available in this case, including through preenforcement actions in state court of the kind already underway against SB 8. But actions in state court could potentially be precluded by state law. Moreover, one of the main functions of federal courts is to provide a forum for constitutional claims against state and local governments that is independent of the latter's own authority.

In sum, the ultimate implications of the SB case remain to be seen, and will surely be litigated in future cases. Perhaps the only people who can be truly satisfied with today's result are all the lawyers who will get extra business, as a result of it.

UPDATE: I have made some additions to this post.

 

NEXT: Pre-Enforcement Constitutional Challenges

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  1. I agree with Sotomayor philosophically, but does she defend her position by putting forth any kind of legal argument?

    1. In the highest court all cloak their policy preferences in legal reasoning, she's just dispensing with the cloak.

      1. Did you read what she wrote, you bigoted, obsolete, disaffected right-wing clinger?

    2. Yes, she puts forth a compelling legal argument.

      SB 8 has two parts. First is the part that Gorsuch (and EV) focus on: taking executive officials out of the picture, so the traditional defendants can't be sued to prevent the law from taking effect. If that's all there was to SB 8, it wouldn't be nearly as dangerous as it is.

      The second part of SB 8 is all the changes it makes to state courts, only for SB 8 cases. They're set up to make the state courts extremely biased against abortion providers, so that even if the providers win a case against them, it's extremely expensive... so much so that abortions are effectively banned. For example, SB 8 cases set no precedent in Texas, so even if one fails, the providers still have to defend against the next one and the next one - even multiple cases for the same abortion! The providers have to pay their their own court costs, win or lose, plus the plaintiff's costs if the case succeeds. And on and on. Essentially, SB 8 turns the Texas state courts into an abortion provider harassment system.

      Sotomayor blasts Gorsuch for completely ignoring this part of the law. She (and Roberts) point to precedent explaining that when a State intentionally weaponizes its own courts with the intent of thwarting the Supreme Court and the Constitution, it loses its sovereign immunity. Here, they would have liked to enjoin the Texas courts from entertaining these harassment-based lawsuits at all. Problem solved, and a strong signal to the States: don't pervert the powers your own court systems as a way to deny people their federal rights.

      1. I posted this before reading EV’s post, which did in fact reference some of her legal reasoning.

        I can’t say who has the more reasonable constitutional interpretation here, but I can’t imagine that any of the justices really like the idea of SB 8 laws, so if Sotomayor had the best legal reasoning, I’m guessing the majority of justices would have been happy to jump onboard.

        1. I think it depends on how likely each justice thinks it is that there'll be more of this kind of law (colored also of course by their opinion of the abortion right itself).

          Roberts is very protective of federal judicial power, so he sees the threat. (Thomas just doesn't care.) Gorsuch (and I guess the other 3) I don't think are convinced that SB 8 style laws are going to catch on, so they don't want to do something drastic in response to a threat that might not materialize. If laws like SB 8 become popular - especially targeting rights that the conservatives care about more - I think they'll change their minds.

          Too late for Texas women of course.

          1. "Gorsuch (and I guess the other 3) I don't think are convinced that SB 8 style laws are going to catch on, so they don't want to do something drastic in response to a threat that might not materialize."

            Perhaps it is time for America's advanced, educated, successful, modern states to school the lesser states?

          2. "Too late for Texas women of course"

            But just in time for their innocent offspring.

          3. If you think some of the conservative justices ruled as they did due to their specific position on abortion, then doesn't that tell us that they won't overturn Roe outright? If they knew that Roe was gone then what incentive would they have to take abortion into consideration at all with SB 8? They'd only be thinking about the precedent as it applies to other constitutional rights.

            1. No, I think they just really don't expect more SB 8 style laws, especially outside the abortion context. And no matter which way Dobbs goes, the conservatives don't see the current abortion situation in Texas as adding any particular urgency to curtailing this kind of law. (Maybe even especially so if they expect Roe to be overturned.)

              1. "I think they just really don't expect more SB 8 style laws, especially outside the abortion context."

                If that's what the justices really believe ... they are dumb.

      2. RE: SB 8 cases set no precedent in Texas

        Nothing unusual. No trial court ruling sets precedent. Summary judgment rulings in Texas state court often don't include reasoning. Nor do final judgments. The opinion order issued by Judge Peeples is obviously a special situation, and is heading to the Thrid Court of Appeals next.

        The partial declaratory SJ is to be severed to make it appealable. The denial of the motion to dismiss under the Texas Citizens Participation Act is appealable under the interlocutory appeals statute and will likely be appealed, if it hasn't already happened.

        Also not the timing here. Judge Peeples ruled on 3 motions contemporaneously and did so yesteredy apparently because the TCPA motion would otherwise have been overruled as a matter of law without and accompanying opinion. Since the TCPA prima facie issues are intertwined with the grounds sought for SJ, the partial SJ in effect also becomes appealable even without express severance. The denial of the plea to the jurisdiction is not immediately appealable, but the lack of jurisdiction can be taken up on appeal sua sponte in a pending appeal authorized on some other basis.

        We might see multiple appeals being docketed, but the Austin Court of Appeals will likely consolidate them, or at least coordingate the briefing and panel assignment.

      3. "so much so that abortions are effectively banned."

        A reminder: SB8 does not ban all abortions, and the rate of abortion in Texas has only dropped by about 50% since it took effect.

        Because it isn't actually much of a burden to check for a fetal heartbeat, and apparently about half of all abortions in Texas were already before one was detectable.

  2. I have a question for you inside baseball types. Would you infer anything about how they're going to rule in Dobbs from this decision?

    I mean, if the conservative justices knew they were going to overturn Roe in its entirety, wouldn't they be far more interested in putting the total kibosh on SB8 because now it would be more likely to set a precedent to attack rights they actually care about?

    Or is there a possibility that the justices are just being... principled or something in their legal analysis here?

    1. My guess is that if the USSC was going to protect the constitutional right of abortion, SB-8 would’ve been stayed. Gut Roe/Kill Roe seem to be the finalists.

      1. I guess what I would infer here (if we're going to assume agenda over legal principles... which is obviously more fun to assume) is that Roe will not be completely overturned. Because once abortion isn't an issue anymore, the conservative justices have nothing but good incentives to jump onboard the Sotomayor train in this case.

        1. I think they (conservative justices) are genuinely concerned about opening the floodgates for federal judges to enjoin state court officials. You could imagine that kind of thing getting out of hand. So they've got their fingers crossed that SB 8 is just a one-off. Time will tell.

  3. The first line of Justice Thomas's decision is "I join all but Part II–C of the Court’s opinion." So, Gorsuch's opinion is the majority except for II-C. Please update your post.

  4. I think this case was another Masterpiece Cakeshop or Fulton. The Texas Legislature screwed up. It drafted its statute shoddily, in a manner that mistakenly left some state officials with residual enforcement power.

    And as with Masterpiece Cakeshop and Fulton, the opinion basically tells the Texas Legislature how to amend the statute to excise the screw-up, and what it needs to do if it wants a statute that will pass muster.

    The victory for the plaintiffs here was completely Pyrrhic.

  5. End result: A pregnant woman has no say in what happens to her own body. Everyone else has a say.

    According to the fans of SB8 that manifest here and elsewhere this not only is the intent of the Constitution but conforms to libertarian ideals perfectly. And why can't those woke libs see reason?

    1. There is no end result yet.

    2. " A pregnant woman has no say in what happens to her own body."

      Not have sex. Particularly if not ready to get pregnant.

      Use birth control.

      Insist on a condom.

      Plenty of say, its just these things happen before the new human is created.

      1. Rape, incest, etc.

        SB8 does not include an exception for those. (Nor do the more general anti-choice arguments based on the contention that a zygote is a human being with the full rights of personhood.)

        You advocate taking women's control over their bodies away from them. Be honest about what you are doing. Lying is unbecoming.

        1. Bob's on a Mission From God.

          A paltry, illusory god.

          In his mind, lying has been divinely authorized.

        2. "Rape, incest, etc."

          Don't know what "etc." means but rape and incest are an insignificant number of abortions, especially incest. Its just a rhetorical device you guys use.

          "zygote is a human"

          Not a "contention". A scientific fact.

          1. "... but rape ... are an insignificant number of abortions."

            Well. I'm certain that raped women (including under aged raped girls) will take comfort knowing that they represent a minority of cases while the State of Texas forces them to carry a pregnancy.

            1. Yep. At least Bob had the courage to show us his true, utterly disgusting colors by writing off these cases as insignificant. Just gross, Bob.

              1. Enough with the pearl clutching. It’s just an emotional show. Bob’s very valid points don’t disappear because your knee jerks. Address them directly.

                1. Bob's point?

                  Bob argued that the state wasn't taking control of women's bodies because they sometimes choose to engage in sex with possibility of pregnancy even when they don't want to become pregnant.

                  I pointed out that the law he supports, SB8, applies to all pregnancies, including the many pregnancies that are not the reasonably foreseeable result of the women's freely taken choices (e.g., rape and incest).

                  Bob said rape and incest were insignificant.

                  Given you see Bob's retort as a sufficient answer to my having addressed his point, apparently, you find the plight of victims or rape and incest insignificant as well.

                  If you mean, you want to hear about what about the college woman (or young married woman not ready for a baby) who is on the pill and requires her partners to use condoms, but, nonetheless, ends up pregnant. Well, I don't find forcing her to undergo the full course of a pregnancy instead of an early term pregnancy before there is a brain and, consequently, even a remote chance of sentience, a reasonable response to what Bob appears to consider the crime of sex.

                  Of course, Bob will say those cases are insignificant. And then I'll have another example, say it isn't a case of rape provable in court, but coercion or unprovable rape (the case Eugene blogged about here where the Baltimore prosecutor kept dismissing the charges although two women claimed rape, but were blackout drunk, but had injuries consistent with forcible sex). Then Bob will say the choice wasn't to have sex, but it was putting themselves in a position where they could be impregnated against their will (even if not provably to beyond a reasonable doubt).

                  I mean, his whole argument is based on women who know they are fertile and have sex without any form of protection. Anything else, he'll claim they aren't the quintessential case. But that's not engaging in honest argument about a law that covers all those cases, including rape and incest.

                  Bob is the one avoiding the pertinent questions by waiving rape and incest away as "insignificant."

                  You are enabling Bob in his worst tendencies. Stop. How about you address my substantive point instead of clutching your own pearls.?

          2. Bob:

            "zygote is a human"

            Not a "contention". A scientific fact.

            Um, first that you need to truncate my quote so much in order to try to make a point just furthers the impression that you aren't an honest broker.

            Second, you're still wrong.

            Human (noun): "a bipedal primate mammal (Homo sapiens) : a person"

            Zygote: "a cell formed by the union of two gametes"

            Your confusion appears to stem from confusing a human (adjective) cell with an actual human (i.e., a person). Your ideological blinders are just making you say evil (e.g., rape insignificant) and dumb (e.g., science says a zygote is a person) things. Maybe be less partisan/ideological.

            1. Do you understand basic biology?
              If the zygote is not a human (specifically, a human in the phase in the lifecycle known as "the zygote") then what species is it?

              "Person" is an entirely different word, poorly defined, that has significantly different meanings in different contexts. Playing with the definition of "person" in the abortion debate is simply attempting to draw lines around which humans you consider it acceptable to kill.

              That a zygote, embryo, or fetus is human is a basic fact of biology. Whether or not they are persons or deserving of protection is a matter of ideology, law, and politics. Try to keep these things straight in the future.

              1. "That a zygote, embryo, or fetus is human is a basic fact of biology."

                Do you understand grammar? I addressed this already.

                A zygote in a woman is human (adjective).

                A zygote in a woman is not a human (noun).

                Two very different things.

                My gall bladder is human (adjective), but not a human (noun). Do you understand grammar and basic biology? A single cell is, by definition, not a human, though it can be human. Try to keep up.

                The people disingenuously arguing that a zygote is a human (or eliding over the adjective/noun distinction) are the ones playing definitional/language games as a means to sneak the personhood of a single cell into the abortion argument as a supposed "biological fact". You oughtn't have fallen for it or, alternatively, you oughtn't engage in that legerdemain.

                One of the central questions of the debate is when the decidedly non-person, but very much adjectively human sperm/egg, zygote, blastocyst, etc., becomes a (noun) human/person.

      2. Wouldn't it be funny if every time Bob jerked off, he had a 1% of getting pregnant (far less than the chance of birth control failing). He would've had thousands of abortions by now! And be the world's foremost Row v Wade advocate. Hands off Bob's body (except his own of course)!

        1. Unlike you, I have a willing woman around so I don't have to jerk off daily.

        2. Women can get pregnant from masturbation?

          1. Don't panic, Jesse. Reread the hypo.

      3. "Not have sex. Particularly if not ready to get pregnant."

        You're under the gross assumption that all abortions are of unwanted pregnancies.

        That's demonstrably false. A fetus could have profound defects. In my own tragic case, the fetus has anencephaly and would not survive outside the womb. It was horrific.

        And -- Texas SB8 does not have any exceptions for a case such as mine.

        1. Thank you, Inis. Great point.

          And so sorry you went through that.

    3. I don’t know if anyone around here is a big fan of SB 8, except in the most myopic and trollish sense. But as a general principle that constitutional workarounds are a good idea? Which political faction does that benefit? If anyone, it seems like progressives see the federal constitution as more of a hinderance to much of their local agenda, but not enough so to eliminate constitutional protections for the stuff they care about.

      I can’t say what’s the most reasonable constitutional interpretation when it comes this particular case, but I’m pretty sure that most people don’t like the idea of SB 8 type laws becoming a thing.

  6. "Perhaps the only people who can be truly satisfied with today's result are all the lawyers who will get extra business, as a result of it."

    Its good to be the king.

    1. Lawyers who went to strong schools, graduated with good records, made partner at large law firms, and the like may be the king, but backwater lawyers stuck in can't-keep-up, backwater Ohio with shambling resumes are more like ladies-in-waiting.

  7. "The difficulty of resolving future cases is heightened by the fact that there is no one opinion that commands a majority of the Court on the crucial question of which government officials can be sued and why."

    I don't think it's hard if the future case is about abortion. On other subjects you'd be reading tea leaves. Even if Thomas joined the other conservatives to produce a majority opinion in this case you couldn't count on an otherwise identical case involving guns or religion not to be distinguished in some way.

    1. Don't you think it's also possible when it comes to abortion, if another state enacts a similar law, but one that cleans up the specifics that SB 8 tripped over in the eyes of the SC?

  8. Speaking as an erstwhile pre-millennial zygote, I appreciate Bob's comments.

    I thanked my mother on my recent birthday for, you know, giving life to me some time in the past century and raising me (My Dad is long gone longer around to be appreciated for his significant contributions). She was a bit baffled unawares what is considered an "undue burden" these days.

    1. Does that imply that she went through with the pregnancy because you were a due burden?

  9. Is there a case to be made that laws that rely on private actors to enforce them are unconstitutional?

    I have zero sympathy for abortion mills, but I am hesitant about this legal mechanism, because it can be used against things I think the constitution actually does, and should, protect.

    1. The problem isn't private actors, but awards of punitive damages to private actors who have no legitimate interest in the case.

      Say I'm driving and the wheels of my car cross over the white edge line. If I hit you, you have a personal interest in the case and can sue for whatever damage I did. If you are merely offended by my driving, you have no personal interest in the case and can not sue. Prosecution has to be by the government, or in the rare situations where private prosecutors are allowed has to be subject to government supervision.

      1. OK, but my question remains -- is there a case to be made that this enforcement mechanism violates the constitution?

        1. There is an argument to be made on that, even when the law doesn't directly implicate substantive constitutional rights (like John's hypo), but it isn't just that enforcement relies on private actors. That happens a lot and even punitive damage awards are, essentially, a private enforcement mechanism to dissuade certain wrongdoers. So the problem isn't just private enforcement, it's private enforcement where the private enforcers have no connection to the matter, defendants could face an essentially unlimited number of separate private enforcers for one violation of law, and then add on that broad venue provisions, one-sided fee shifting, taking away certain defenses, and otherwise warping process to be unrecognizable to what we normally consider "due."

          You are right to be concerned. This type of law is horrible, regardless of whether it's trying to stop conduct I don't like. SB 8 is par for the course for the type of person/politician whose only concern is that they get their way, principles and integrity be damned.

    2. " I have zero sympathy for abortion mills, but I am hesitant about this legal mechanism, because it can be used against things I think the constitution actually does, and should, protect. "

      That lack of principle is common among disaffected conservatives, and one of the reasons right-wingers are largely uncompetitive in the modern American marketplace of ideas.

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