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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Myths of Texas’ Fetal Heartbeat Act and What the Court Should Say
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Friday, October 29, 2021
The Myths of Texas’ Fetal Heartbeat Act and What the Court Should Say
Guest Blogger
Charles
W. “Rocky” Rhodes & Howard M. Wasserman The
Supreme Court hears arguments Monday in United States v. Texas and Whole
Woman’s Health v. Jackson, both challenges to Texas’ Fetal Heartbeat Act,
enacted as Senate Bill 8. The
law prohibits abortions following detection of a fetal heartbeat, around 5-6
weeks of pregnancy, before most women know they are pregnant. This is not
unusual; SB8 is one of many state laws prohibiting pre-viability abortions at
various points, inconsistent with long-standing judicial precedent. The Court
will hear argument in December in Dobbs v. Jackson Women’s Health, a
challenge to Mississippi’s ban on abortions after fifteen weeks pregnancy. SB8’s
enforcement scheme makes it unique. The law prohibits government enforcement.
Instead, “any person” may sue anyone who performs or aids-and-abets an unlawful
abortion and recover a minimum of $ 10,000 per abortion. The
five months since Texas Governor Greg Abbott signed it have witnessed a
whirlwind of legal challenges, before and after it took effect on September 1. A
collection of reproductive-health providers and advocates led by Texas-based
Whole Woman’s Health sued to stop enforcement of the law, naming as defendants various
state executive officials, state judges, state clerks of court, and the head of
an anti-choice advocacy organization. On September 1, a 5-4 Court refused to
enjoin enforcement of the law pending that litigation. Most providers stopped
performing abortions, depriving thousands of pregnant women in Texas the
opportunity to exercise their constitutional liberty. On September 18, Dr. Alan
Braid, a Texas physician, announced in the Washington Post that he had
performed one prohibited abortion, prompting three people to file SB8 suits against
him in state court. In response to President Biden’s
called for a “whole-of-government response” to SB8, the United States then
sued Texas; the district court preliminarily enjoined enforcement, finding the heartbeat
ban constitutionally invalid, but the Fifth Circuit stayed the injunction. The
Court granted certiorari before judgment in both cases, focused on whether the
U.S. or providers can challenge the law in preemptive offensive litigation. SB8
has created a stew of panic, uncertainty, and misunderstanding. Critics labeled
it a “brazen defiance of the rule of law and the federal constitutional rights
to which Texans are entitled.” Others complained that it thwarts traditional
and ordinary mechanisms of federal judicial review,
stripping citizens of the ability to vindicate their rights in court. The panic
results from a red state targeting the left’s favored liberty—reproductive
freedom—in a way designed to challenge Roe and Casey while
stopping most abortions in the state. The confusion results from the
law’s unique reliance on exclusive private enforcement in lieu of government
action and disregard for the procedure beneath constitutional adjudication. One scholar described reproductive-rights supporters as
“hypnotized” by the law’s novel procedural features, preventing them identifying
ways around the hurdles. In this post, drawn from two forthcoming articles, we identify the many myths and errors surrounding SB8
and how we believe the Court should resolve the cases. The Many Myths of SB8 1. SB8’s Enforcement Mechanisms Are
Unprecedented The prevailing refrain is that SB8 is
“unprecedented” in its reliance on private civil litigation to enforce state
law and in requiring rights-holders to assert the Constitution as a defense to
liability. In fact, many private rights—statutory
and common law—are enforced via private civil litigation and are subject to constitutional
limitations raised as defenses in the private suit. The most obvious example is
defamation—an individual sues CNN for damages, CNN argues in defense that its
speech was constitutionally protected, and the court must dismiss the suit if
it agrees with that defense. But CNN cannot go on the offensive to stop the
private enforcement action before it is filed or proceeds, as no state
executive enforces state defamation law. SB8 is not the first attempt
to target abortion providers and practices with private civil litigation.
Louisiana and Oklahoma have anti-abortion laws enforced exclusively through
private lawsuits. In the 1990s, anti-choice
activists organized campaigns to bring medical malpractice, wrongful death,
failure-of-informed consent, and similar civil claims against abortion
providers. The goal was to use extensive tort litigation and liability to
increase malpractice-insurance costs, making it prohibitively expensive to
provide abortion services or driving providers from the field. Although imposing liability in some of those
cases might have run afoul of the Fourteenth Amendment, federal judicial
intervention was not possible to stop those suits. Nor is Texas the first state to enforce
public law through private lawsuits by plaintiffs who have suffered no injury. California consumer
protection law permitted such private enforcement before 2004. While SB8
may be unique in using exclusive private enforcement by uninjured plaintiffs,
this is a difference of degree, not kind.
2. Enjoining Laws Not People Under the popular narrative of
constitutional adjudication, the Supreme Court announces that a law is constitutionally
invalid and renders that law null-and-void for all persons and all purposes. But a law does not violate
constitutional rights or cause constitutional injury by its existence and the
federal court cannot act against the law in the abstract. The actual or
threatened enforcement and imposition of liability under that law causes the
constitutional injury. And judicial relief, such as an injunction, does not run
against a law in the abstract; it runs against the person charged with
enforcing the challenged law and prohibits him from taking certain action, such
as enforcing that law. The problem with SB8 is the absence of a
person whom reproductive-health providers can sue and whom a federal court can
enjoin from enforcement. The ordinary path is to sue the executive-branch
officer responsible for enforcing the challenged law; for abortion restrictions
in Texas, that means the attorney general or the commissioner of the Department
of Health Services. Because neither officer, nor anyone in the executive branch,
enforces the heartbeat ban, there is no proper government defendant. Recall
last Term’s California
v. Texas. Plaintiffs challenged the constitutional validity of the
Affordable Care Act’s “individual mandate,” as amended, which required individuals
to purchase insurance or to pay a penalty of $ 0; the Court held that the absence
of an enforceable provision eliminated any injury to the plaintiff fairly
traceable to any federal official. SB8 mirrors that case. In California,
no federal official could enforce the insurance mandate because it was factually
and practically impossible to collect a $ 0 tax. Under SB8, Texas officials are
legally prohibited to “take or threaten[]” enforcement of the heartbeat ban.
SB8 and the $0 mandate produce the same outcome—no executive officer can
enforce the law, so no executive officer can cause a constitutional injury. An executive
officer cannot be enjoined from enforcing a law that he cannot, whether legally
or practically, enforce. In both cases, rights-holders have no one to sue and
courts have no one to enjoin. 3. Targeting Judges Without an
executive official to sue and enjoin, providers targeted state judges and state
clerks of court, asking the federal courts to enjoin the latter from accepting
and docketing private SB8 lawsuits and the former from adjudicating them. In
granting a preliminary injunction in U.S. v. Texas, the district court enjoined
the state and its officers, including judges, from “accepting or docketing,
maintaining, hearing, resolving, awarding damages in, enforcing judgments in,
enforcing any administrative penalties in, and administering” any SB8 lawsuit. Federal courts
cannot stop enforcement of state law by stopping state judges from adjudicating
cases that are presented to them. In recognizing the right of constitutional
rights-holders to sue responsible executive officers for injunctive relief, Ex parte Young disclaimed any federal court authority to enjoin state judges to
stop enforcement of state law. Injunctions to stop state judicial proceedings
run against the litigants bringing those cases, not against the state judges. Shelley v. Kraemer is not to the contrary. Shelley held that the
Fourteenth Amendment prohibits state courts from enforcing a racially
restrictive covenant in an action to prevent an owner from occupying his home.
But Shelley does not authorize federal constitutional claims against the
state judges to stop them from considering whether to enforce that covenant,
nor authorize federal courts to enjoin state judges from
adjudicating; the point of Shelley is that the Fourteenth
Amendment provides a defense to attempted enforcement of a covenant and basis
for appellate review and reversal of a judge’s decision enforcing the covenant.
But the state judge must be allowed to decide. Similarly,
the invalidity of SB8’s heartbeat ban provides a basis to appeal any judgment in
a private lawsuit to the Supreme Court. 4. No Alternatives Critics insist that SB8 thwarts ordinary
mechanisms of federal judicial review. In fact, providers and advocates have
two options for a federal forum, consistent with ordinary processes of judicial
review and constitutional litigation. Providers can sue private SB8 plaintiffs
in federal court as the persons “responsible” for enforcing the heartbeat ban,
in violation of the Fourteenth Amendment. Private individuals become bound by
the Constitution and subject to federal suit when they act “under color” of
state law by performing a “traditional public function,” functions
traditionally and exclusively performed by the state. These functions include
administering elections and providing municipal services in a private domain. Enforcing prohibitory laws for the benefit and
protections of the general public, to the exclusion of the government and
without a personally affected plaintiff, constitutes a traditional public
function. Alternatively, providers can defend any state
SB8 suits by raising the constitutional invalidity of the heartbeat ban as a
defense and as a basis for the court to dismiss the state action. That is,
providers can proceed as would CNN when sued for defamation for protected
speech or as would Jack
Phillips of Masterpiece Cakeshop when sued for refusing to bake a cake
expressing a disagreeable message.
The problem is that either option requires providers to wait until an
individual sues or threatens to bring an SB8 action, a delay that imposes a chilling
effect on rights-holders (as reflected on the ground in Texas, in which
providers have stopped performing most abortions). On the other hand, both
options became open when three individuals filed SB8 suits against Dr. Braid. 5. Feds to Rescue
The United States suit against Texas is
as procedurally questionable as Whole Woman’s Health. If
the U.S. succeeds in challenging SB8, practical and political restraints
prevent the federal government from coming to the rescue against every state
that adopts similar constitutionally defective laws related to abortion, gun
rights, or anything else. The federal government lacks the resources to police
and pursue every state law that violates individual rights. And federal
litigation priorities will reflect the administration’s political and policy preferences—the
Trump Justice Department would not challenge a law such as SB8. What
the Court should say The
appropriate resolution of the two cases argued Monday is a split decision—not
because the Justices should find some compromise, but because a split decision
is the procedurally appropriate result. The
Court should reverse the district court in WWH and dismiss that lawsuit.
The private plaintiffs have not identified any proper defendant for a
pre-enforcement suit. No state executive enforces the heartbeat ban; state
judges are not proper defendants for enjoining constitutionally defective state
laws; and the individual defendant, Mark Dickson of East Texas Right to Life,
has not indicated that he intends to file an SB8 suit. To the extent this means
Texas succeeded in limiting providers to litigating rights in a defensive
posture, it is consistent with due process.
The Court should affirm the district court in U.S. v. Texas and hold
that the United States can proceed with this action. The U.S. has standing and
an equitable cause of action to sue Texas, certainly on its own behalf and
likely on behalf of all rights-holders, especially where the alternative forces
rights-holders to refrain from protected activity fearing potentially crippling
litigation. Having found that the U.S. has a viable lawsuit, the Court should lift
the Fifth Circuit’s stay of the preliminary injunction and prohibit enforcement
of the law pending the Fifth Circuit’s review of the constitutional merits. We
make no prediction as to what the Court will do. But the answer is before them
and straight-forward, following ordinary rules of procedure and constitutional
adjudication. But the Justices must see past the distraction of hypnotizing
procedural uniqueness. Charles
W. “Rocky” Rhodes is Professor of Law and Charles
Weigel II Research Professor of State & Federal Constitutional Law, South
Texas College of Law Houston; he can be reached at crhodes@stcl.edu. Howard M. Wasserman is Professor of Law at FIU
College of Law; he can be reached at howard.wasserman@fiu.edu.
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