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.

The U.S. asserts two theories of standing. The broader theory—suing on behalf of the public at large—raises difficult questions about the nature and scope of U.S. authority to pursue so-called parens patriae standing, at least absent congressional authorization. It is not certain that the United States has sufficient pecuniary or proprietary interests in the requested relief or that it has a cognizable equitable cause of action. The U.S. has a stronger case on its narrower theory of suing on behalf of federal employees and agents whose ability to manage federal programs have been hindered by state law. SB8 prohibits any person from providing any assistance for a post-heartbeat abortion, even in cases of rape and incest; that conflicts with requirements of federal programs in prisons, military bases, immigration and resettlement facilities, and job corps centers, which must assist in cases of rape and incest. This is a more traditional basis for the federal government to have standing to maintain an equitable claim under the Supremacy Clause—the United States seeks to remedy the threat of injuries to its sovereign and pecuniary interests flowing from an unconstitutional state law.

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 Howard M. Wasserman is Professor of Law at FIU College of Law; he can be reached at

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