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Abortion

The Legal Battle Over Texas SB 8 is Far From Over

Opponents of this dangerous law have a variety of options left to pursue in state and federal courts, despite their recent defeat in the Texas Supreme Court.

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On Friday, the Texas Supreme Court ruled that state medical licensing authorities have no authority to enforce Texas SB 8 - the controversial state law banning nearly all abortions six weeks or more after conception. Some defenders of SB 8, such as co-blogger Josh Blackman, claim this will put an end to lawsuits challenging the constitutionality of the law. But such triumphalism is premature.

The key issue at stake in the SB 8 litigation is whether Texas can evade judicial review by limiting enforcement authority exclusively to private parties (see here and here for more detailed explanation). 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.

If the SB 8 ploy succeeds, it would provide a roadmap for undermining other constitutional rights by delegating enforcement to private parties. Preenforcement lawsuits against laws attacking such rights would be barred. And the possibility of enormous civil liability would chill the exercise of the rights in question, even if there were some chance of ultimate vindication through defensive litigation.

As Texas' solicitor general admitted in the Supreme Court oral argument, there is no limit to the amount of liability a state could impose on violators. If $10,000 isn't enough to create a chilling effect, the state could increase the damages to $1 million or even more.  A number of other states have already begun to imitate Texas' strategy, as with California's plan to use it to attack gun rights.

In Whole Woman's Health v. Jackson, decided in December, the Supreme Court ruled that abortion providers challenging SB 8 are not allowed to sue the Attorney General of Texas, state judges, state court clerks, and the one private individual who was a defendant in the case. But eight of nine justices agreed the plaintiffs could potentially sue state medical licensing officials, because the latter had the authority to enforce SB 8 by denying licenses to practitioners who "violate the terms of Texas's Health and Safety Code, including S. B. 8." But, as Justice Neil Gorsuch noted in his opinion for the Court, the issue of whether the licensing officials had such power is ultimately a matter of Texas state law.

On remand the US Court of Appeals for the Fifth Circuit certified that state law question to the Texas Supreme Court, which has now concluded the licensing officials have no authority to enforce SB 8 either "directly or indirectly." It does not follow, however, that there are no other state officials that plaintiffs can sue. As I have previously pointed out, Gorsuch's reasoning may well permit lawsuits against state officials tasked with enforcing state court judgments, such as sheriffs. Such people are not judges, and therefore not subject to the Supreme Court's precedents limiting injunctions against state court proceedings. There may be other nonjudicial state officials involved in the enforcement of judgments, as well.

Opponents of SB 8 would do well to search out all such potential defendants, and file cases against all of them. At least two of the justices who joined Gorsuch's opinion expressed grave concerns, in oral argument, about the threat SB 8 poses to constitutional rights (Kavanaugh and Barrett). Only one of the "Gorsuch four" needs to switch in order to defeat the SB 8 ploy in a future case. The three liberal justices and Chief Justice John Roberts have already indicated (in their opinions in the December ruling) that they are open to allowing lawsuits against state court clerks.

I am far from infallible when it comes to such predictions. But I think there's a strong likelihood that at least one of the four will indeed switch, if faced with a choice between modestly weakening the abstention and sovereign immunity doctrines underpinning SB 8, and imperiling judicial protection for a wide range of constitutional rights - and in the process significantly weakening the power of judicial review.

For reasons I highlighted here and here, rights valued by conservatives are threatened along with those valued by liberals. California's plan to target gun rights reinforces that point. Future litigation on SB 8 - and perhaps other state laws inspired by it - will reveal whether the Supreme Court (and lower federal courts) are willing to address the threat.

In the meantime, we should not forget that a Texas state court ruled in December that SB 8's delegation of enforcement to private parties violates the Texas Constitution. That ruling is now on appeal, and the trial court did not issue a injunction against enforcement of SB 8 while litigation continues. Nonetheless, it is entirely possible that SB 8's private enforcement ploy will ultimately be defeated in state court.

A state-constitutional ruling against SB 8 cannot prevent other states from imitating the statute. Those states' constitutions may not constrain enforcement delegation in the same way. But a Texas state ruling against SB 8 might at least have some persuasive value for other state courts. At the very least, state constitutional challenges are an additional tool in the armory of those who seek to counter this pernicious strategy for undermining constitutional rights.

As I have emphasized before, the fight over SB 8 is not primarily about abortion. Even if you believe the Supreme Court should overrule or limit Roe v. Wade and other precedents protecting abortion rights (which it may soon do in the Dobbs case), you have reason to be concerned about this menace to our other constitutional rights.

In sum, the legal battle over SB 8 and its would-be imitations elsewhere is far from over. Opponents should not give up too easily.

 

NEXT: "We Will Never Be Brothers"

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  1. Exactly. If legislatures can restrict one constitutional right with this method then EVERY OTHER CONSTITUTIONAL RIGHT can be similarly restricted.

    That shouldn't be so hard to understand. Unless you are confident that the courts will continue to play Calvinball on this, you should be very concerned about erosion of long well established constitutional rights.

    1. A hoplophobic jurisdxitin like California switching to an SB 8 enforcement model would be a massive boon for the gun rights movement.

    2. My Con Law prof hammered this concept, regardless of the issue or political relevance (paraphrasing): "if you agree with this, what will it mean when a right you happen to like is attacked?"

      1. The first doctor charged will lose at the trial court, then win with fees and costs at the appellate level (at least, until Roe is overturned). No doctor with half a brain wants to take the risk of being the Guinea pig when the Supreme Court will rule on Roe before their appeal of an S.B. 8 decision would go up on appeal. Too much risk, limited potential upside.

        By contrast, every gun nut in the U.S. would be thrilled to be the test case for a 2nd Amendment case. They will be the “hero” of their State for “owning” the “libs.” No danger to professional reputation, license, or potential for losing given the Heller decision and its progeny.

        Your professor must not think too far out. . .

        1. The California law might subject the novel legal framework in Texas' anti-abortion law to a review that our conservative Supreme Court might take seriously. Even after they trash Roe, this same framework could be used by conservatives to undermine civil rights they find annoying all across the country. Better to stomp this end-run around our justice system now while it's still new and the lawyers haven't figured out it could be more lucrative than auto accidents and workplace injury claims.

          1. It’s not clear there is a viable way to defeating this strategy absent an amendment to jurisdiction rules. But that is a drastic action you don’t need to take give a simpler solution exists.

            The simple solution is the time-tested strategy of planting a test-plaintiff to violate the law and get it before the court. That is how the NAACP defeated segregated busses way back with Rosa Parks. Same strategy will work when if any State attempts to vitiate any Constitutional right with an S.B. 8-type law.

        2. Zarniwoop's professor knows something you don't. Just like SB 8, California won't target gun nuts, it'll target gun providers. You'll be allowed to have a gun, you just won't be able to get one.

          1. Any SB 8-type law will have to fine someone to work. If they fine gun sellers, the gun sellers can challenge the law. Given they business is selling guns, there will be at least one who sues to continuing their business.

            Plus, if this is in California, that business and their lawyer will get attorney fees under the PAGA here

            1. Are you just making shit up? PAGA is about employees suing their employers.

              Obviously they'll do like SB 8 did and put their thumb heavily against the defendants (for these cases only). Even if they win the lawsuits, gun sellers won't be able to stay in business.

              1. If you don’t know how to use the Private Attorneys General Act I’m certainly not going to explain it.

                The point is, California will probably pass a law trying to vitiate the 2nd Amendment. The moment a court hears it—no matter what machinations Newsom creates—the Constitution will prevail. That’s the point of a Constitution. Most likely, the State will end up on the receiving end of paying large attorney-fees as well, assuming the defense lawyers are worth their salt.

                And the point I’ve made here is simple: SB 8 has only worked so far as doctors are afraid to risk their professional livelihood on challenging an obviously unconstitutional statute. . . because that Constitutional right may not exist soon. That’s what can happen with Judicially-created rights: different judges can “unmake” them. Far better to use the democratic process to create rights by Amendments to the Constitution.

      2. Well, look at what old Jjh posted below you. This is the type of person you're up against.

        They always seem to think it won't be them under the boot.

        1. Or, we just know how to advise clients of the most likely outcome of pending litigation. . .

          You know, that thing lawyers are paid to do.

    3. It'll be on a state-by-state basis and Californians probably shouldn't be allowed to own guns anyway.

  2. For maximum leverage, the point of attack in California could be gun stores and ammunition sellers—folks who can get hit with a lot of judgments if they do not shut down.

    I am of course not in favor of this tactic, anywhere for anything. Just mentioning where the leverage is to get it rescinded.

    1. Approximately five minutes after the first complaint is filed, every gun rights organization in the country will be fighting to pay for a defense attorney, and the motion to dismiss will be granted about five minutes after that.

      1. So, you subscribe to the Calvinball defense?

        1. Not Calvinball. Such suits brought against gun and ammunition sellers is exactly the sort of thing the federal PLCAA act was written to prohibit.

          1. So, if the courts determine that the constitution establishes a certain right, it's then up to the legislature to protect that right via legislation such as the PLCCA, or violate it as in SB 8.

            Do I have that correct?

            And how is that not some version of Calvinball?

            1. Well, obviously it IS Calvinball, with the first move having been the courts inventing a right not found in the Constitution. That was when the game of Calvinball started.

              1. All means are on the table when stripping a right you don't like, eh?

                That's the same logic the court packers have.

                1. No, actually I've been quite vocal about SB8 being a bad law, which deserves to be struck down on multiple grounds.

                  Just not on the ground that it violates a fictional right the Court pulled out of its collective ass.

                  1. Bad procedure that infringes on no rights will have a hard time justifying going to the Supreme Court.

                    1. Due process is, properly, exactly about a right against bad procedure.

                    2. A bad procedure that impinges a right. Lands you in jail, that sorta thing.

                    3. Keeping your own money is a right, so SB8 impinges on a right, even if you ignore the fictional one.

            2. You're missing that if such an enforcement suit is brought, at that point the courts can stop it.

            3. No, you don't have that correct.

              The issue at this point has nothing to do with the merits (constitutionality of SB8) it has to do with the jurisdiction of the federal courts to hear the case as a pre-emptive challenge.

              That jurisdiction necessarily depends on the plaintiff having sued a(the) correct defendant.

              Who (if anyone) is the correct defendant turns on the nature of the law being challenged, not any constitutional issue.

        2. I think that SB 8 and similar bills are unproductive troll jobs that don't deserve the outrage they're generating, precisely because they're so unlikely to have any long-term practical effect (except, perhaps, making it slightly less likely that Roe v. Wade will be overturned). They certainly shouldn't require or inspire upending basic standing doctrine.

          1. Well, you're probably correct about that. The supreme court is most likely to overturn Roe v Wade making the whole thing moot. Seems to me that they should have stood on principle and thrown out the obvious end-run around existing precedent instead of relying on a post-hoc mootness argument.

            Next time this stratagem is tried against a "real right" they'll most likely disallow it. Instead we have them telegraphing the argument that reproductive choice is not a "real right", at least not for long.

            1. After all these years watching one chance after another for Roe to be overturned fail, I'd pretty much given up hope. But your reasoning is actually encouraging. I can't imagine the Court actually likes SB8, on multiple levels.

              But they have to know SB8 analogs for other rights, real ones, will be coming down the pike, and they didn't need SB8 to overturn Roe. So, no, I tend to think it's just their basic reluctance to actually resolve any issues when there's any remaining chance to keep the litigation going.

        3. We have seen some Calvinball. We will see much more coming up.

      2. Not familiar with litigation, are you?

      3. What makes you think the mtd would be granted, in a California court?

    2. Using an SB8 style law, California might prevent pre-enforcement reivew on 2A grounds, but how do they plan to get past the PLCAA based motion to dismiss?

      1. With a bottomless supply of private plaintiffs?

        1. The bottomless supply of private plaintiffs wouldn't really mean anything, though, if not for the supply of judges who are happy to refuse to actually apply the PLCAA.

          1. I don't think the PLCAA applies here. It indemnifies gun sellers against the criminal misuse of the guns. It doesn't indemnify them against claims arising from the sale itself.

            In fact those claims are explicitly excluded: "... resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include ... an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product ..." such as a California law subjecting gun sellers to a $10,000 liability per gun sold.

      2. how do they plan to get past the PLCAA based motion to dismiss?

        Spurious arguments why it doesn't apply, accepted by anti-2A judges. See, e.g., the Sandy Hook litigation against Bushmaster.

        1. We'll continue to see this sort of resistance in the lower courts, until the Supreme court finally makes it clear that the 2nd amendment IS going to be treated as a real civil right. They're sending too many mixed signals.

          1. I wonder why there is judicial sabotage of the 2nd Amendment.

            1. Because guns a scarry.

            2. We're discussing a right that was viewed as necessary to the security of a free state. The reason it's an enumerated right is that the people running a state don't necessarily want its freedom to be secure.

              It's a right intended to maintain a balance of power between the governed and the government, and the governed don't want such a balance, they typically want, and think they're entitled to, the upper hand.

              And everybody in the federal judiciary was chosen by the government, NOT the governed.

              1. Can you possibly imagine other reasons not to like a bunch of guns floating around besides tyranny?

                Come on, man; it's not all bad faith an little Stalins.

                1. We're not discussing reasons to "not like" it. We discussing reasons judges ignore an explicit constitutional right.

                  The bad faith is already established, we're just discussing the reason for it.

                  1. This conspiracy goes deep - all the way to the Supreme Court and Scalia!

                    The bad faith is your usual inability to see why people might disagree with your take.

  3. SB8 always seemed "too clever by half" to me. I'd rather this strategy be used for nothing at all.

    That said, I'm not sure that the courts would find that using this end run on gun rights is the same as using it on abortion. As a personal matter I'm more of a believer in woman's natural rights to have an abortion than in people having guns (I have no interest in guns myself). But the constitutional right to an abortion always seemed shaky to me, and the constitutional right to own and carry guns seems pretty clear.

    1. This is an ends-justifies-the-means argument. If the legal framework being used in SB8 is bad--it's bad regardless of the outcome.

      1. Did you read what I wrote? I think SB8 is a bad idea. However I don't know that all uses of this bad idea strategy would (or should) be treated the same by the courts.

  4. If sheriffs or clerks can be sued, the law can easily be amended to take sheriffs and clerks out of the process.

    1. How will the civil judgments be enforced then? Self-help? Contempt?

      1. Contempt seems like it would work, yeah.

        But the law could easily be extended to provide the same remedy against anyone financially aiding or otherwise transacting any business with a person who has lost one of the SB8 cases and not paid the judgement.

        1. Hey, if it's good enough to use against Russia, why not your own neighhbor?

  5. Also, the argument that it will be used against real Constitutional rights is pretty hollow given courts' willingness to forget about real Constitutional rights whenever it suits them. There’s no 2nd Amendment in the Ninth Circuit. There’s no 4th Amendment when police have a dog with them. There’s no 1st Amendment for political campaigns or for commercial speech or (effectively) for anyone big tech and big business doesn’t like. There’s no right to a fair trial for Republicans in DC. There are no Constitutional rights at all during a pandemic. Etc. Etc.

    One more silly threat isn’t persuasive. Spare us the pretense.

  6. Josh's enthusiasm for the device behind SB 8 - and Eugene's strange apology for it - comes from a place of privilege. Anti-abortion rights activists are not really concerned about the mechanism being used against them, because they feel confident that Democrats will never successfully fashion their own versions of these laws, or if they do, will be able to be stopped by leveraging power in governors mansions and in Congress.

    I also find Josh's confidence that the Court will not revisit SB8 a bit over-optimistic. It is possible that SB8 itself will not come up again for review. But as other states try to push the envelope, the Court will need to take an actual stand on what SB8 is trying to do. Gorsuch's unsatisfactory attempt to uphold longstanding principals on standing while leaving an avenue to challenge this unconstitutional mischief clearly communicated an anxiety about SB8 that neither the Fifth Circuit nor the Texas Supreme Court felt it necessary to accommodate. So now that the Court is being shown that it is no longer the supreme arbiter on constitutional rights, as long as it tolerates this mischief, it will be pressed to come out more authoritatively. I hope that it shows more foresight in this than the Fifth Circuit seems capable of.

    1. There's basically no chance SB8 doesn't come up for review again, and I expect the Court to take exception to more than one feature of the law.

      But it's going to come up for review in the normal way, when somebody is sued, and appeals losing. SB8 wasn't even intended to be totally immune to review. Rather, it was designed to generate test cases for abortion that wouldn't immediately be disposed of the instant they hit a court, that would survive long enough to reach the Supreme court.

  7. Wouldn't the individual who sues to enforce the law also be subject to section 1983 counterclaim for acting under color of state law to deny a constitutional right?

    It seems to me that the abortion right is much less well-defined and less firmly established than, say, speech, so it would be much harder to use the private-enforcement technique to go after better-defined rights - precisely because of the possibility of the counterclaim. The plaintiff would have to be pretty damn sure of his/her position. Even the second amendment, which is written right there in the constitution, would be a better basis for a counterclaim. With abortion, there is always the question of what kind of restriction, when the abortion is being performed, where it is, who is doing it, and all the other stuff that is constantly being litigated.

    1. I do not think that an individual bringing suit is acting under color of law within the meaning of Sec 1983. It that were the case, every stupid libel claim (especially ones seeking a prior restraint) that gets brought would bring on a Sec 1983 counterclaim and potential criminal prosecution.

      More plausible would be sanctions awards against plaintiffs , notwithstanding the existence of a COA under SB8 or any analogous anti-gun law that we may see. Regardless of the existence COA, the clear constitutional defenses should render the complaints frivolous and abusive.

      1. PRESUMPTION OF CONSTITUTIONALITY - CHALLENGER HAS BURDEN

        Constitutional infirmity has to be pleaded and then established as an affirmative defense, or else it's waived. The starting point in litigation is the presumption that a duly enacted statute is constitutional, not that it is unconstitutional.

        "We presume that a statute enacted by our Legislature is constitutional. In re Doe 2, 19 S.W.3d 278, 284 (Tex. 2000). Relatedly, we are to consider a statute's constitutionality only when the question is properly raised and when such determination is necessary and appropriate to a decision in the case. Id.; see also Tex. Ass'n of Bus. v. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) ("[W]e have construed our separation of powers article to prohibit courts from issuing advisory opinions because such is the function of the executive rather than the judicial department.")."

        "When reviewing the constitutionality of a statute, we begin with a presumption that it is constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003); see also TEX. GOV'T CODE § 311.021(1) ("In enacting a statute, it is presumed that . . . compliance with the constitutions of this state and the United States is intended."). The wisdom or expediency of the law is the Legislature's prerogative, not our own prerogative. Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995) (quoting Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968))."

        "Statutes are presumed to be constitutional. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983); . . . J.G., 495 S.W.3d [at] 364 . . .; see also Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). A party challenging the constitutionality of a statute bears the burden of rebutting the presumption. Peraza, 467 S.W.3d at 514; J.G., 495 S.W.3d at 364-65. We endeavor to uphold the statute, "mak[ing] every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown." Peraza, 467 S.W.3d at 514; see J.G., 495 S.W.3d at 365."

  8. Why are Texas judges not bound by Art 6 para 2 of the Constitution here?
    "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

    1. Because the issue here is an interpretation of state law, not an interpretation of federal law and A6P2 does not make US Supreme Court interpretations of state law superior to the interpretations of state law by the state supreme court.

      As a matter of Federal law, federal court jurisdiction to here a case depends on having a proper defendant.

      Here who is the proper defendant (and whether or not any proper defendant even exists) turns on interpretation of Texas state law.

      1. But we are not talking about interpretations. Everyone agrees what the text of the law says - though there is disagreement over who enforces it. if state law is contrary to the Constitution, judges - even state judges - are bound to reject it, surely?

        1. "Everyone agrees what the text of the law says - though there is disagreement over who enforces it."

          It took the state Supreme court to tell people that when the law said somebody didn't have authority to enforce it, it actually meant that.

          " if state law is contrary to the Constitution, judges - even state judges - are bound to reject it, surely?"

          That's not how it typically works out for the 2nd amendment, which has the advantage of actually being found in the Constitution. Why would you expect it to work out that way for abortion, which isn't?

          1. 2A is unclear, of course. And there is considerable disagreement over what one might call its penumbra.

            1. It suffers from the classic ambiguity of any clause of the Constitution that gets in a politician's way. Not any other sort of ambiguity, though.

              1. Untrue. What are "arms"? Weaponised smallpox? Suitcase nukes? Or arms as they existed in the 18thC? Is having a "no parking" zone in front of a gun store an infringement? Ambiguous...

                As for penumbra...

                1. Scalia found quite a lot in the ol' penumbra. Hunting, for example. Somehow "militia" means you have a constitutional right to a pigeon gun.

        2. The question of who enforces the law is itself a matter of state law interpretation. Hence the Tx SCT has the last word on that.

    2. They are, which is why they will be promptly dismissing any SB 8 complaints that are filed (unless, of course, Roe is overruled later this year).

      1. I believe this is, in fact, why the abortion movement were so concerned to dispose of SB8 in pre-enforcement review. Sure, likely the Texas courts dismiss any SB8 complaints. But SB8 allows for retroactive application to abortions performed before Roe is overturned, in the event it is.

        So any abortions they perform just sit there, like accumulating time bombs.

        This is, in fact, the most dangerous provision of SB8, that it doesn't allow you to safely rely on existing legal precedent. If not for that provision, they could basically ignore SB8 until Roe was overturned, and THEN comply, and be safe.

  9. "undermining other constitutional rights"

    Stealing a base.

    Maybe we could get a Supreme Court decision that abortion isn't a "constitutional right" at all - that *real* constitutional rights can't be "chilled" but non-rights can be.

    1. Your Bill of Rights only has eight Amendments, right? Or that unenumerated rights are inferior to enumerated rights, despite the clear text of the Ninth Amendment:

      "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

      It looks like James Madison predicted the dishonesty of cultural conservatives over 200 years ago.

      1. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

        Dare I ask what possible evidence you can have that this applies to abortion?

        To be "retained by the people" the right would have to have previously been recognized - like the right to sue for libel (recognized *at the time* in many state constitutions), the guarantee (recognized in the 1689English Bill of Rights) "[t]hat all grants and promises of fines and forfeitures of particular persons before conviction
        are illegal and void," the right of conscientious objectors not to perform military service in person (also recognized in many state constitutions), and so on.

        I'm certainly as indignant as you are against the straw man of myself against which you're so mercilessly flailing.

  10. Your Bill of Rights only has eight Amendments, right? Or that unenumerated rights are inferior to enumerated rights, despite the clear text of the Ninth Amendment:

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

    It looks like James Madison predicted the dishonesty of cultural conservatives over 200 years ago.

    1. same answer as above.

  11. People call the Texas court's ruling a defeat for the abortion side even though the abortion side won the battle. Medical professionals got a ruling that they can not be disciplined professionally for performing (allegedly) illegal abortions, even though they had asked the courts to subject them to professional discipline. The perverse incentive in this case, and the characterization of what should have been a victory as a defeat, points out a serious flaw in the way judicial review works.

  12. This OP seems to be confusing pre and post enforcement review. SB8 is only insulated from the former, it is still exposed to the latter.

    So, an abortionist is sued under SB8. They raise as a defense Roe v Wade. At this point they either lose, and appeal, or prevail.

    Probably prevail, because Roe hasn't been overturned yet.

    Then somebody else sues them over the same abortion. (A key ingredient in SB8's special sauce.) Now they've got Roe as a live issue, AND the way SB8 permits multiple lawsuits over the same act. So THAT gets reviewed, too.

    Eventually, suppose Roe gets overturned. They get sued over an abortion committed while Roe was still Supreme court precedent. Now they don't have Roe as an issue, but the judiciary just might take exception to a law that says you can't rely on Supreme court rulings.

    As I see it, this law is subject to multiple lines of attack once a lawsuit has actually been filed under it. It's only insulated against pre-enforcement review.

    The situation is similar to an SB8 themed anti-gun law, except that SB8 will have already been litigated, probably to death, and so it should go faster.

    1. Yeah, I don't see why it's so vital that this be given pre-enforcement review. Have someone step up as a willing test subject, be sued for just enough to invoke the courts, and take it to court the same way you take anything else.

  13. Ilya loves supporting causes that needlessly and cruelly take innocent life. That's why he supported the Iraq War, that's why he pushes jab mandates, and that's why he adores abortion.

    1. Jab mandates cruelly take innocent life?

      You're clearly a special kind of stupid.

      1. Uh, yes they do, and speak for yourself. To say there were no people who died after taking the jabs is the height of delusion.

        1. To say there were no people who died after taking the jabs is the height of delusion.

          Those same people also died after eating meals, but that doesn't mean that sandwiches cruelly take innocent life.

          The previous commenter was wrong only in thinking that your stupid was of a special kind; it's really quite banal stupidity.

      2. They clearly do. But it is still a wrong take. Those who die from immunizations do exist (see e.g. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/adverse-events.html), but are swamped by the people, particularly those with co-morbidities, who are live when they might otherwise have died. I got vaxed as soon as possible, but I'm still a believer in choice w.r.t. COVID vaccines myself.

        A similar take might be to focus on the people killed by seat belts who might have lived without them (presumably a few are trapped in burning/sinking cars for example).

  14. Abortion should be Safe, Legal, and performed disproportionately on Women of Color.

    1. Margaret Sanger is that you?

  15. The U.S. Supreme Court upheld a private attorneys general enforcement mechanism with a very broad interpretation of standing (broader than I would think appropriate) in Havens Realty. Since the Texas Constitution imposes a standing requirement similar to tbe one upheld in Havens Realty, this brings this law and the one upheld in Havens Realty much closer together.

    A key difference is that the Fair Housing Act, which Havens Realty upheld, made the private attornies general enforcement mechanism an addition to the usual one by state agents, not the exclusive remedy.

    However, I think we need to be careful not to have one set of rules for laws we like, and another for laws we don’t like.

    Suppose, as is seeming increasingly likely, that by the end of this term the Supreme Court reverses Roe v. Wade and completely eviscerates the doctrine that the constitution imposes limits on abortion laws, rendering the substance of the Texas Heartbeat Act, considered separately from its enforcement mechanism, entirely constitutional. What then?

    Given Havens Realty, it is by no means clear that private enforcement by itself, at least so long as the private enforcers have genuine standing, violates anyones constitutional rights. After all a number of traditional laws work that way. Libel is an example. A few states have criminal libel laws, but in most states libel is entirely a matter of private enforcement. After all, the Constitution prohibits laws against libeling the state.

    What gives standing? That remains to be seen. I think the doctrine of organizational standing that Havens Realty promulgated was unnecessery and wrong. Enough parties had traditional standing that it was unnecessary. And I just don’t think a non-profit shifting its resources to address one problem as distinct from another injures it. What it chooses to focus its resources on is a voluntary choice, not forced. And I think the implications of the SB8 case illustrate why standing needs to be cabined.

    But if we cabined standing to leave a limited set of potential plaintiffs with a clear interest in tbe matter - the father of the child, for example - I don’t think that this would create a constitutional violation.

    Exclusive private enforcement is not uncommon. Only individuals can be libeled. Only spouses can be harmed by torts like alienation of affections. People may have different opions on the constitutionality of the substance of these laws. But nobody thinks their enforcement mechanisms unconstitutional.

    Suppose that, instead of SB8, Texas had created a more focused tort along the lines of the alienation of affections tort, such as a tort for wrongful killing of ones unborn child which would be exclusively a tort against a very limited set of people, such as fathers, perhaps grandparents.

    Doubtless Professor Somin would consider Roe correct and the substance of such a tort unconstitutional. But I don’t think that the enforceement mechanism of a specialized tort that clearly connects the conduct to an identified injury to a clearly involved individual would by itself present a constitutional problem.

    1. Speaking as a pro-lifer, I see 3 problems with SB8:

      1) Granting standing to people who have no relation at all to the abortion, or anybody involved in it.

      2) Multiple bites at the apple: You get sued over a particular abortion, and prevail, somebody else can sue you again over the same abortion. Over and over until the statutory limit on damages has been reached.

      2a) You're not entitled to court costs if you prevail, but the people you're suing are, so you can be nickeled and dimed to death by an endless parade of losing litigants.

      3) Does not respect reliance on legal precedent: You can be sued for an abortion when the courts were telling you it was protected, later on, if the courts change their minds about that.

      #1 is a problem, but it's #2 and, especially, #3, that are the real issue. And they're all problems with the law regardless of your opinion about abortion, and whether or not the courts should treat it as a right.

      If the Supreme court tells you you've got a constitutional right to do something, never mind if the Court pulled that opinion out of it's ass, you should be able to rely on that, at least until they notify you that they've changed their minds.

      And court costs should not be wielded as a weapon against prevailing parties.

      1. THE SERIATIM LITIGATION ARGUMENT DOES NOT HOLD WATER, NOR THE LAMENTS ABOUT UNLIMITED LIABILITY FOR A SINGLE ABORTION

        There is a lot of hype here, which is reality-remote. Upfront court costs are what discourage repetitive lawsuits. It costs about $300 to file a civil action in Texas state court (and much more for attorney effort, at about $300 hourly rate in the metro areas), so why would anyone waste their money on even a single lawsuit if they can't win? Not to mention suing several times?

        Now, assuming that SB8 suits become winnable (in the near future), and further assuming that multiple suits are filed at the same time by different "bounty hunters"
        or "ideological plaintiffs" based on the same SB8 violation, the abortion provider will be in a position to take the lowest "bid".

        The statutory minimum per SB8 is 10K, and an agreed judgment could be in that face amount to the letter of the law, but that doesn't mean that the plaintiff won't take less cash-in-hand in exchange for a release for the full amount when the case-settlement would also obviate the need for post-judgment collection efforts.

        So, the abortion provider facing multiple claims predicated on the same abortion is actually in a more advantageous position than when being sued by just being sued by a single plaintiff who may seek more than the minimum and may not be willing to settle for the statutory minimum. In a multi-suit/multi-district scenario, any plaintiff who seeks more than 10K can be undercut by one who is willing to settle for the statutory minimum. And the location of the multiple suits around the 250-some counties of Texas makes no difference logistically because the entire state of Texas uses a single statewide efiling system.

        1. "The statutory minimum per SB8 is 10K"

          Maximum. Plus court costs.

          Yes, in theory you could get a collusive lawsuit by one plaintiff, who'd agree to be paid the statutory maximum, foreclosing further suits in regards to that particular abortion. You might even get abortion providers suing each other, so that the awards would cancel out.

          Balancing this is that SB8 doesn't just provide for suing the abortionist, but also anyone who enables the abortion. The whole staff of the clinic would be subject to their own lawsuits, too.

          But the real threat is the time bomb aspect: The suits ought to be immediately dismissed so long as Roe remains good law, but if Roe is overturned, you can reach back, IIRC, two years, to sue for past abortions. So the clinics would be accumulating potential liability which would land on them just as their source of revenue dried up.

          1. By the same reasoning, the abortion clinic staff could sue each other and cancel the respective judgments reciprocally; and resort to this stratagem only as needed (i.e., when someone else sues them). The collusive agreed judgment could be procured much faster than a judgment by an adverse plaintiff through trial.

            The retrospective liability isn't certain either. In 2019, as an example, the North Carolina supreme court abolished common-law marriage by judicial decision (as distinguished from legislative repeal), but only prospectively. Stone v. Thompson, 833 SE 2d 266 - SC: Supreme Court 2019
            https://scholar.google.com/scholar_case?case=11795460743778973483&hl=en&as_sdt=5,44&sciodt=6,44

            Who would or could stop the SCOTUS if they were to overrule Roe and limit the effect likewise, rendering the relevant part of SB8 unenforceable if someone were to try to impose liability for abortions performed prior to the change in the legal regime within the four-year limitations period?

            1. "By the same reasoning, the abortion clinic staff could sue each other and cancel the respective judgments reciprocally"

              At this point you're juggling an awful lot of potential liability, between a large, vaguely defined set of people, thus the current chilling effect.

              The retrospective liability built into SB8 is, in fact, one of the features I'd expect the Supreme court to strike down, should they revisit this law on post-enforcement review. It's by far the most dangerous and dubious feature of the law.

              The citizen enforcement, though it gets the most attention, is probably the LEAST problematic feature of SB8.

              1. The law and how it fits into society isn't detached from it's structure or how a single law is constructed. Perhaps, from the perspective of someone in a field related to law or who finds the intricacies of legal theory interesting, the inner workings are important. But from a social perspective, setting up a neighbor versus neighbor legal system based on the childhood game of "dogpile" is getting the attention and outrage it deserves. No one likes the idea of being turned in by their neighbor (for abortion, for owning an AR-15, whatever) as a revenue generating scheme between lawyers, special interest organizations, and random citizens with a need to balance their checkbook.

            2. That was the South Carolina Supreme Court.

              1. You are right, ReaderY. Thanks for the correction. Mea culpa.

  16. Preenforcement lawsuits against laws attacking such rights would be barred.

    Oh, no, if SB8 stands, the usurpation of the veto power by judges will be partly reversed and the courts will revert to hearers of actual cases. Quelle horreur!

  17. That said, SB8 has several procedural issues in addition to the private attorneys general enforcement mechanism. One of them is that only prevailing plaintiffs get to collect costs and fees, apparently even if the litigation is deemed frivolous.

    A schema that puts defendants at too much of a disadvantage or permits unlimited frivolous litigation without penalty might itself represent a Due Process violation even if it’s completely constitutional to prohibit what the law authorizes suing over.

  18. "this dangerous law"

    What's dangerous about it? Saves too many lives?

    1. Who cares if you break some rules - it's all in service of restoring the law to being good again!

      Of course, that kind of rationale doesn't apply to the other side, who aren't breaking the rules for virtuous reasons like you are.

      The key is to realize that this a government of virtue, not laws.

      1. "Who cares if you break some rules - it's all in service of restoring the law to being good again!"

        I know that's the logic - being able to kill babies is a good thing because of all the sexual freedom it allows - so therefore it's ok to break a few rules by inventing new constitutional rights and usurping self-government and state authority. I'm not quite convinced though.

        1. Except that's not the logic behind the right to privacy.

          1. But it's not a right to privacy, or a right to medical autonomy, or anything else besides a right to abortion, or else the doctrine would have very wide application that we're not seeing.

            1. Uh... if you say vaccines you're a troll.

    2. According to a recent New York Times article it does not save many lives.

      https://www.nytimes.com/2022/03/06/upshot/texas-abortion-women-data.html

      You will of course find people arguing that (one is enough) / (one is too many).

      1. "According to a recent New York Times article"

        Impartial reportage at its best. If they're accurate one some issue dear to their heart, it's only by accident.

  19. Roe is going down eventually and your bloody baby-killing institution will fall.

  20. To pretend the overwrought hysteria over this law isn't about abortion is disingenuous. Abortion is the sacrosanct right that stands above all others for the Left.

    There is no "right" to immediately run to a federal courthouse to complain about a state law you don't like. Any defendant sued under this statute will, obviously, be before a judge who can immediately provide him judicial review of the statute. And if he is unsatisfied with the result, he can appeal to the Texas Court of Appeals. And then to the Texas Supreme Court. And then, finally, to the United States Supreme Court.

    That's four opportunities for judicial review, hardly the "denial of judicial review" Prof. Somin and his fellow critics keep asserting is in the law.

    1. Yeah, there is this obsession with pre-enforcememt federal judivial review of SB8.

      Such review is not available for libel, nor for the Sandy Hook lawsuit against Remington.

    2. Believe it or not, lawyers can be pissed off about abusive process all on it's own.

      Maybe to you it doesn't matter because it's only happening to bad people, but this is clearly intended to be a chilling burden on a group that still has rights. Allowing that kind of abuse of process is bad for rights in general, even if the initial foray is regarding something you wish weren't a right.

      Because that's why process is so powerful - process is generally applicable to stuff you like as well as stuff you don't. So if there are any rights you care about, you don't want to open this door.

      1. How is this more abusice than libel lawauits (for which there is not pre-enforcememt review)

        The Westboro Baptist Church lacks stamding to seek an injunction against the entire American population, on the argument that some private person may sue them for libel.

        1. I have no idea what you're on about here. Snyder v. Phelps said they couldn't be sued for their rantings.

          1. It does not mean the Phelpses can sue to enjoin judges and sheriffs for enforcing libel.laws against them.

            They had to raise the First Amendment as a defense.

            1. ...So you're against the idea of a facial challenge?

              How libertarian of you!

      2. Yes, being dragged into court is a pain in the ass. Perhaps we should abolish lawsuits.

        Legislatures pass laws and create causes of actions that I may or may not agree with, but something is not "abusive" simply because I or someone else doesn't like it. If a majority of Texans find this law "abusive", they have recourse at the ballot box to choose a new legislature that can repeal the law. But the citizens of Texans don't seem to share the views of you and Somin at the moment.

        As for the legal issues, Prof. Blackman has been correct since the beginning, and, I believe, obviously so. What pre-enforcement relief can the courts possibly give? You can't get an injunction against the world (at least not thus far in the 1000-year history of common law).

        1. FIRST AMENDMENT IRONY - THE OTHER BIG CHILL

          Meanwhile, Texas abortion providers, funders, and friends are chilling the First Amendment rights of pro-life Texans with the Texas Declaratory Judgments Act, seeking attorneys fees against Texas Right to Life and any John and Jane Does (up to 100, if not even more) who "collaborate" with them in 14 separate offensive (pre-enforcement) lawsuits in which they seeking judicial invalidation of SB8. These are now consolidated for the pre-trial stage by the Texas Multi-District Litigation panel.

          NOTA BENE: These pro-abortion plaintiffs are seeking attorneys fees for themselves now while complaining that they would face unlimited attorney's fees if they were to be sued in the future, and that only the latter scenario is somehow unconstitutional, not their own quest for attorney's fees under the Declaratory Judgments Act.

          MDL (Tex.) No. 21-0782 IN RE TEXAS HEARTBEAT ACT LITIGATION
          https://search.txcourts.gov/Case.aspx?cn=21-0782&coa=cossup

    3. Yeah, I was about to say. Has this law been enforced against anybody? If so, then surely the constitutional arguments can be made in that case. If not, then the plaintiffs are asking the court to engage in a hypothetical which of course they shouldn't do. Roe and Wade were, after all, real people (although Roe wasn't her real name) they didn't just ask abstractly about abortion.

      They don't even have to pay out the money if they lose, just found some corporation to do one abortion and get sued. If it wins, then great. If it loses, declare bankruptcy and never pay out a dime. This isn't legal rocket science.

  21. Aren't Judges state officials? If no officials can enforce the law, it's not really a law.

    1. Yes.

      However, they can not be enjoined with respect to lawsuits they may hear.

  22. RE: "lawsuits against state officials tasked with enforcing state court judgments, such as sheriffs."

    This is a pretty whacky idea for the obvious reason that for a Texas sheriff or constable tasked with execution at the back-end, a judgment is just a judgment. It matters not what the cause of action was that led to a judgment, nor does the sheriff get to re-evaluate its validity. And the operative document at the enforcement end is actually a writ of execution issued by the clerk. At that point, the adjudication is over, and the judgment enforcement it's ministerial.

    Second, Texas has other means of judgment enforcement, such as the filing of an abstract of judgment in the county real estate records that creates a lien on non-homestead real property owned by the judgment-debtor. That lien attaches and must be paid off (or otherwise released) when the property is sold. The abstract says nothing about the nature of the underlying legal dispute or source of legal liability.

    Third, there is also statutory garnishment as a post-judgment collection method, which involves a separate lawsuit against an entity or person that is indebted to the judgment-debtor, typically a bank or other depository institution. The judgment-debtor must be given notice of the garnishment proceeding, but the financial assets will already have been frozen by the writ served on the financial institution, typically before the judgment-debtor even becomes aware of it.

  23. ERRORS IN REPORTAGE & COMMENTARY ON STATE COURT LITIGATION

    RE: "In the meantime, we should not forget that a Texas state court ruled in December that SB 8's delegation of enforcement to private parties violates the Texas Constitution. That ruling is now on appeal [...]"

    The latter assertion is not completely accurate. The declarations as to SB8 constitutionality (under the Texas constitution only) take the form of interlocutory rulings partially granting summary judgment. Because none of the 14 cases consolidated into the pre-trial MDL process was resolved in its entirety, there is no final appealable judgment yet.

    You can find a copy of appointed MDL Judge David Peeples' order included in a 1/10/2022 filing with the Texas MDL Panel titled "Appellees’ Joint Motion to Return MDL Case to Original Court of Appeals After Inadvertent and Improper Transfer for Docket Equalization." https://search.txcourts.gov/Case.aspx?cn=21-0782&coa=cossup

    What's on appeal now (in the Austin Court of Appeals) is the part of Judge Peeples' order that denied the Defendants' Motion to Dismiss under the Texas Citizen Participation Act (TCPA). Such interlocutory appeals are authorized by statute and result in an automatic stay of the underlying case (here all of the parallel cases). The constitutional issues are not completely carved out from this appeal, but the appellants also challenge the plaintiffs' standing to sue them, which is a threshold jurisdictional issue. If the challenge to standing fails and the Court of Appeal does reach the merits, the state constitutional arguments will be reviewed under the "prima facie case" framework that governs TCPA appeals.

    But the tricky thing in this appeal is that the summary judgment rulings (declarations by way of summary judgment on state constitutional arguments) cannot be appealed under the interlocutory appeals statute, but are contained in the very same lengthy opinion order that denies Texas Right to Life's motion to dismiss under the TCPA. It will be interesting to see how the appellate court deals with this unusual procedural posture where the trial court has already (also) weighed in on the merits at the motion-to-dismiss stage (albeit not on all issue and not all in the plaintiffs' favor). Briefing is currently ongoing.

    NOTA BENE: All 14 cases consolidated by the Texas MDL Panel (for pretrial proceedings only) are pre-enforcement challenges by abortion providers, funders, supporters, under state constitutional law. To say that all pre-enforcement avenues have been foreclosed by the Supreme Court through its ruling on the certified question from the 5th Circuit is simply false.

  24. As correctly predicted, it’s the death penalty for women who receive, doctors who perform, and who knows who else involved in an abortion…

    https://thehill.com/homenews/state-watch/542436-gop-texas-lawmaker-introduces-bill-to-allow-death-penalty-for-women-who

    And for those who will “pshaw” and say it has no chance of passing I say “Today’s absurdity is tomorrow’s SB-8.” Griswold and Obergfell might fall first, but the death penalty for abortions is coming.

  25. Senate Bill 8 -- conservative legislators' and conservative judges' handing of it in particular -- seems likely to be one of the precipitates to enlargement of the Supreme Court.

    Culture wars have consequences. The American culture war is not over but has been settled. In an America that steadily becoming less intolerant, less rural, less religious, less backward, and less White, some conservatives seem resolute about learning the relevant lessons the very hard way.

    (The liberal-libertarian mainstream should not be overconfident, however. If conservatives perfect a machine that mass-produces poorly educated, roundly bigoted, superstitious, rural, easily frightened, selfish, older, disaffected, southern white males -- and Federalist Society lawyers figure a way to register the newly minted yahoos to vote -- Democrats could have a real problem on their hands.

    Other than that -- well, that and a Rapture -- continuation of the established trajectory of American progress seems predictable.)

    In modern, improving America, a larger Supreme Court seems much more likely than (1) substantial, enduring diminution of abortion rights and (2) continued expansion of gun absolutism and special privilege for bigots attempting to hide behind religion.

  26. The Idaho House has passed a bill that is similar to Texas’ but has several differences, including that only certain close relatives can sue. This makes it much more like an ordinary tort - libel or alienation of affections - than like Texas’ SB8 or federal statutes with private attornies enforcement provisions like the Fair Housing Act.

    If it also doesn’t have particularly onerous provisions for defendants - if for example defendants can get costs and sanctions from plaintiffs who file frivolous suits - then it wouldn’t seem particularly problematic. Lots of torts can only be filed by private parties and hence don’t permit general pre-enforcement suits.

    1. Interestingly, while the Idaho bill prevents a rapist from suing, it doesn't prevent the rapist's parents or siblings from suing. So yeah, if the bill passes, the rapist's family can sue for $20K up to four years after the procedure.

    2. It looks like the Idaho law, although tightening standing, retains other infirmities that the Texas law has, including a prohibition on awarding costs to prevailing defendants (but not plaintiffs).

      1. ON THE WHINING ABOUT COST AND FEE SHIFTING

        Texas law distinguishes between cost (taxed by the clerk) and attorney's fees. Filing fees are paid up front by the plaintiff (which is a disincentive to bring suit regards of whether there is a risk of frivolous-suit sanctions or loser-pays fee-shifting), and by the appellant in appellate proceedings. If a judgment awards costs (automatically), there is no assurance that they will be collectible. And the clerk will typically already have been paid.

        Costs are typically much lower than attorney's fees in non-complex cases. The case filing fee for an original suit is about $300-$350 in district courts, with some variation among counties. See, e.g., https://www.bexar.org/3103/Fee-Schedule

        Depositions are expensive and can raise the amount of assessable costs considerably, but paper discovery (now in PDF and via email and eserve) typically comes first, so if a case gets dismissed early on -- by whatever procedural vehicle --there won't be much in the way of costs.

        Regarding attorney's fees, Texas generally follows the American rule: each pays their own (if any) unless fee-shifting is authorized by the statute on which a claim is based or a contract between the litigating parties.

        There are Texas statutes that authorize a fee award to the prevailing plaintiff/claimant (Chapter 38 of the CPRC is probably the best known, for contract, quantum meruit and similar claims). Most statutes that authorize fees authorize it as an additional remedy for a successful claim, but not all. There is an important and often-used statute that authorizes the trial court to award fees to either party, even the losing party (CPRC 37, the Texas version of the Declaratory Judgments Act), and then there is a statute that provides for fee-shifting to the prevailing party, even if the prevailing party is the defendant (Texas Theft Liability Act).

        The Texas legislature makes these policy decisions. How is there a constitutional issue? Just because a particular industry says it's unfair to use doesn't make it unconstitutional.

        Health care providers can get attorney's fees (as sanctions) in a med-mal case when the plaintiff's attorney fails to file a timely expert report, but that's not the general rule. It was part of "tort reform" in favor of the medical profession. It's not a constitutional entitlement.

  27. Limiting abortions is the opposite of dangerous

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