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The Procedural Puzzles of SB8, Part VI: Federal Defenses in SB8 Actions

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Howard Wasserman and Charles Rhodes | 9.20.2021 5:42 PM

Our fourth post explained that providers and advocates will have to raise their constitutional challenges to SB8 in a defensive posture in state court after being sued by a claimant for violating SB8, with our fifth post arguing that state courts should dismiss SB8 claims on state constitutional standing grounds. If state courts nevertheless determine that SB8's statutory grant is sufficient to establish standing, the next move of providers and advocates is to assert their federal defenses, despite provisions in SB8 purporting to limit their availability.

As detailed in our first post, it is common for rights-holders to assert federal constitutional rights in a defensive position to avoid liability in state court; potential certiorari review from the United States Supreme Court is available at the end of the state judicial process. A successful constitutional defense results in the dismissal of the enforcement suit or denial of the relief sought by the claimant. Defenses alone, though, do not provide affirmative relief for the rights-holder, such as an injunction prohibiting further enforcement. To obtain affirmative relief, the rights-holder must counterclaim or otherwise seek offensive relief, perhaps by filing the § 1983 actions described in our third post. Without taking such affirmative action, the defensive position may provide a favorable judgment in the case for the rights-holder, along with any applicable preclusive or precedential impact flowing from that judgment.

The primary defense for providers and advocates sued under SB8 will be the federal constitutional rights of women under the Fourteenth Amendment to choose to have an abortion under Roe v. Wade and Casey v. Planned Parenthood. Some advocate defendants may have additional federal constitutional arguments under the First Amendment as made applicable to the states. Under Brandenburg v. Ohio, speech can be regulated as incitement to unlawful conduct only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." These federal constitutional defenses, at least under current precedent from the U.S. Supreme Court, should bar an SB8 claimant from recovering.

But SB8 purports to limit such defenses available to rights-holders in state-court litigation. SB8........

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