The Volokh Conspiracy

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My Law 360 Article on the Texas SB 8 Case and Prospects for the Future

The article explains why SB 8 potentially poses a threat to constitutional rights far beyond the abortion context, and how future court decisions could potentially mitigate it.


The Law 360 website recently published my article on the Supreme Court's decision in the Texas SB 8 abortion case. The link in the previous sentence is paywalled. But Law 360 has generously allowed me to post a PDF version, which is available here for free.

Here is an excerpt:

Last month, the U.S. Supreme Court issued an extremely important, but frustratingly murky, decision in Whole Woman's Health v. Jackson, the case addressing S.B. 8, Texas' controversial new anti-abortion law. The key issue at stake in this case is whether Texas can evade judicial review by limiting enforcement authority exclusively to private parties.

S.B. 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 abortions after a fetal heartbeat is detected, usually around 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. For this reason, the struggle over S.B. 8 has implications that go far beyond abortion rights. It should trouble even those who believe that the Supreme Court's 1973 decision in Roe v. Wade and later decisions protecting abortion should be overruled or severely limited, as might happen in Dobbs v. Jackson Woman's Health Organization, a case currently before the justices.

Unfortunately, the Supreme Court's decision is vague on the question of whether the S.B. 8 strategy will be successful or not. Only further litigation is likely to clarify the picture. In the meantime, other states have already begun trying to imitate the S.B. 8 strategy.