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The Procedural Puzzles of SB8, Part II: Failing Offensive Litigation

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Howard Wasserman and Charles Rhodes | 9.12.2021 12:07 PM

Our first post described the two ways a rights-holder litigates federal constitutional rights—offensively, by seeking from a federal court a declaratory judgment of invalidity and an injunction to stop enforcement of the challenged law, and defensively, by raising the constitutional invalidity of the enforced law as a defense in the enforcement proceeding. Major constitutional decisions have arisen in both contexts.

The procedural controversy surrounding SB8 pits the legislative goal of stopping offensive litigation and channeling litigation into a defensive posture against abortion providers' desire to pursue offensive litigation in federal court. The latter explains why a collection of providers, medical personnel, and reproducrive-rights advocates pushed an offensive suit. The former explains why that suit stands in limbo and appears unlikely to succeed. After the district court denied motions to dismiss, a divided Supreme Court declined to enjoin the law pending appeal, and the Fifth Circuit refused to dismiss appeals for lack of jurisdiction and stayed district court proceedings. Whatever one believes about the constitutional validity or policy wisdom of a prohibition on post-heartbeat abortions, the court was correct that the lawsuit cannot work procedurally.

Who did providers and advocates try to sue and why did it fail?

State Officials and Direct Enforcement

Offensive litigation typically targets the responsible executive official—the executive-branch official charged with enforcing the challenged law—for an injunction prohibiting him from enforcing the law against the plaintiff. That often is the governor or attorney general for criminal laws. Challenges to Texas abortion restrictions typically run against the Commissioner of the Department of Health Services (John Hellerstedt of Whole Women's Health v. Hellerstedt fame).

SB8 eliminates that option. By disclaiming enforcement by any state or local government or official, the law leaves no one to sue. There........

© Reason.com

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