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The Procedural Puzzles of SB8, Part I: Litigating Constitutional Rights

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Howard Wasserman and Charles Rhodes | 9.10.2021 12:54 PM

Thanks to Eugene for inviting us to blog about Texas's fetal-heartbeat law (SB8) and our article, which will be published in American University Law Review in January. The paper explores the statute's procedural rules and what abortion providers and reproductive-rights activists can do to challenge the law's constitutional validity. We began the project in June, when Texas enacted the law, and have been trying to keep up with fast-moving events. This post and the ones to follow highlight various pieces the paper and the procedural puzzles that rights-holders are trying to solve.

At its core, SB8 does several things. The core substantive provision prohibits abortions after a fetal heartbeat was or could be detected (usually at around 5-6 weeks of pregnancy); that prohibition violates current Supreme Court precedent, which prohibits states from banning pre-viability abortions. It also prohibits aiding-and-abetting a prohibited abortion. The statute prohibits any state or local government or government official from enforcing the law through criminal, civil, or administrative mechanisms. Instead, it creates a private cause of action for "any person"—regardless of injury or connection to any unlawful abortion—to sue anyone who performs or aids-or-abets an unlawful abortion; remedies include statutory damages of at least $ 10,000 per unlawful abortion, injunctive relief, and attorney's fees. The statute then limits or manipulates the cause of action in various ways, including statewide residence venue (meaning a plaintiff from East Dillon can sue there over an abortion performed in Austin) and limits on available defenses.

The rhetoric around SB8 has hit a common refrain: The law and the Supreme Court's order have immunized this "clearly unconstitutional law" from judicial review. Providers and advocates are that it is impossible to obtain a court determination on SB8's constitutional validity. The lawsuit DOJ filed against Texas reflected this refrain, complaining that SB8 has thwarted "traditional mechanisms of federal judicial review" and that Texas has attempted to "to strip its own citizens of the ability to invoke the power of the federal courts to vindicate their rights."

SB8 does not prevent courts, including the Supreme Court, from deciding the constitutional validity of the fetal-heartbeat ban, even without the DOJ lawsuit. Rather, it channels review into a different context. Private constitutional litigation takes two forms—offensive or defensive.

In an offensive posture, rights-holders threatened with enforcement of a constitutionally........

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