Thanks, Max.
So lemme see if I have this straight … so far, it’s just about injunctions to stop enforcement of the law. If the one permitted suit fails (as most expect) and the law is enforced against providers, the providers will then be able to sue to challenge the constitutionality of the law.
Yes. But that’s not a sure bet either, since the abortion providers aren’t the ones whose constitutional rights are being infringed.
~Max
Really? If a provider is sued by some random citizen who has had nothing to do with the provider – who has no conventionally understood standing – and they actually have to pay to defend themselves, their rights aren’t being infringed?
Who exactly would have the right to sue to o challenge the constitutionality of this law?
I don’t think the right to be immune from lawsuits by random people is a federal/constitutional right.
Anyone has the right to sue, the question is what suit falls under the jurisdiction of the United States. The Supreme Court’s ruling tells us it must be an actual case or controversy under the federal constitution, with adversarial litigants, and that it must not be a case instituted by a citizen against his or her own state. Those principles apply whether the case is pre-enforcement or in response to actual enforcement.
I have some thoughts about what form of lawsuit might overturn the law, but, not being an actual lawyer, I just don’t know enough about how it works to say if it’s realistic.
The goal, and one apparently shared by the conservative justices (except maybe Thomas) if you listen to / read arguments on Oyez, is to rule that the law is unconstitutional.
The cases we’ve been looking at involved equitable remedies, which I don’t fully understand. It has been stated by the Supreme Court that equitable principles would not allow a court to enjoin the entire population of Texas from enforcing the law. So far as I can tell, that means equitable remedies are out.
That leaves statutory remedies. By virtue of Congress’s 14th Amendment enforcement power, Title 42, section 1983 of the United States Code makes judicial officers liable for depriving a person of their civil rights, even when acting in their official capacity. However the statute only allows injunctive relief against a judicial officer when a declaratory decree was violated, or where declaratory relief was unavailable.
So it seems to me, we would need the right party to seek declaratory judgement that the law unduly burdens a woman’s right to seek abortion, contrary to Planned Parenthood. To seek declaratory judgement I think you need either an actual lawsuit against you, or a credible threat (for example in copyright law you can seek declaratory judgement in response to a cease & desist letter). Under rule 57 of the federal rules of civil procedure the judgement would have to be enough to stop the lawsuit, which applies here because if the law is unconstitutional that saves the courts from adjudicating future lawsuits.
So you find some pro-life activist, or anybody credible, have them write your abortion clinic with a letter to the effect of “stop doing abortions or I’m going to sue you under the Heartbeat Act”. Take that to the local courthouse along with a woman who wants to get an abortion, ask the court to declare that the statute, by creating this private right of action against your clinic, actually presents an undue burden for this woman.
If that is procedurally sound (doubtful) the state courts (including state courts of appeal) may or may not grant judgement in your favor. If they rule against you, you then have standing in federal court under 42 USC 1983 for the sole question of whether S.B.8 is unconstitutional, and the remedy of enjoining the state judiciary from enforcing it.
The weakness is that it will be argued you are the one creating the undue burden, not the statute… because you are free to provide the abortion and just deal with the legal defense. But you can point to positive law that providing the abortion is illegal (section 171.203 of the law), separate from the penalties. I think that is convincing enough, but that’s my opinion.
~Max
I appreciate the entirety of your response but didn’t want to quote the whole thing. A lot of it is frankly over my head.
But I hope you can help me understand the gist of my bafflement. Forgetting about the abortion aspect for a moment, this new law seems on its face to be contrary to pretty much everything I’ve ever understood about the law by giving anyone standing to sue other parties whose actions have had no impact on them, except that they object to those actions on some moral ground. As we’re already seeing from California, this idea can be applied to pretty much anything. It’s fucking absurd.
IANAL, obviously, but ISTM the SCOTUS should be able to take one look at this and say, yeah, no. But you’re saying it’s going to be extremely difficult for anyone to make a case that even gets to SCOTUS. How can that be? And if so, where does it end?
The Supreme Court has always been like that. In Marbury v Madison, 1803, the court famously ruled that James Madison blatantly violated the law (Marbury’s rights), said the court should force Madison to comply, but then turned around and said, ‘however, the law that lets us take your case is unconstitutional. The jurisdiction of the United States is limited by the Constitution itself and cannot be expanded by an act of Congress. You’re on your own.’
~Max
And yet, laws get challenged all the time, and most of them are a lot less absurd than this one. Surely there’s a realistic path here?
I think it’s most likely that the state courts would rule the law unconstitutional, without it going all the way to the federal Supreme Court. And I think pro-life activists will not bother appealing past the local courts, so as to avoid a binding precedent, since private individuals get to choose the jurisdiction.
ETA: Looks like I was right about local courts ruling the law unconstitutional, and wrong about appealing. They managed to consolidate the state court cases into a multidistrict case, and the state court judge presiding just ruled the law unconstitutional.
~Max
This law was designed to be difficult to challenge. It’s basically trying to exploit a loophole in how the judiciary works. It will get mooted when Roe is overturned, no doubt.
Now that I have had a chance to read it myself, I would point you to the well-written opinion from the state court which explains how parts of S.B.8 violate the Texas Constitution. Standing is discussed on pages 29-36, the basic idea summarized by this cite, In re Abbott, 601 S.W.3d 802 (Tex. 2020):
The Texas standing doctrine derives from the Texas Constitution’s provision for separation of powers among the branches of government, which denies the judiciary authority to decide issues in the abstract, and from the open courts provision, which provides court access only to a “person for an injury done him”.
~Max
Thanks again, Max – I really appreciate you digging in. Ignorance fought!
Thanks, Max; good find.
Nice work, Max. Heh. Abbott and his Merry Men were so eager to find an work-around against the Supreme Court, they forgot to check their own state constitution.
Or maybe thought they could get away with it with a wink and a nod. Those are Texas judges after all, not those panty-waist Federal judges.