There have been a number of recent developments with SB 8 – This is Texas’ controversial “Fetal Heartbeat Bill” We discussed this bill as it made its way through the Courts in autumn and winter of 2021 in the form of a case known as Whole Women’s Health v Jackson. This half-baked suit came in the form of a pre-emptive challenge for injunctive relief that was litigated all the way to the United States Supreme Court. The court punted and the case was remanded back to the 5th circuit.
Prior to the Supreme Court's consideration of Whole Women's Health v. Jackson and United States v. Texas, I warned you guys right here, that barring pre-enforcement challenges to Texas S.B. 8 would make it easier for blue states to constrain constitutionally protected individual rights that conservatives and libertarians value. I even gave as an example, the second amendment.
And that is why understanding SB 8 is so crucial that today I feel the need to revisit the topic. For me, the fight over SB 8 is not primarily about abortion.
Even if you believe the Supreme Court should overrule or limit Roe v. Wade and other precedents protecting abortion rights, you have reason to be concerned about this menace to our other constitutionally protected individual rights. It did not take long at all for this prediction to come to pass, precisely as I expected that it would.
In response to the Supreme Court's decisions, California Governor Gavin Newsom is proposing to do precisely what I feared. Recently, Governor Newsom issued the following statement:
"I am outraged by the U.S. Supreme Court decision allowing Texas's ban on most abortion services to remain in place, and largely endorsing Texas's scheme to insulate its law from the fundamental protections of Roe v. Wade. But if states can now shield their laws from review by the federal courts that compare assault weapons to Swiss Army knives, then California will use that authority to protect people's lives, where Texas used it to put women in harm's way…
…I have directed my staff to work with the Legislature and the Attorney General on a bill that would create a right of action allowing private citizens to seek injunctive relief, and statutory damages of at least $10,000 per violation plus costs and attorney's fees, against anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in the State of California. If the most efficient way to keep these devastating weapons off our streets is to add the threat of private lawsuits, we should do just that."
Something else worth noting: Prior to S.B. 8, most anti-abortion legislation was subject to pre-enforcement challenge and enjoined before taking effect. This was part of what prompted the Texas law's particular legislative design. Most gun regulations, on the other hand, have been upheld by federal courts (particularly in the Ninth Circuit) -- though that might change if the Supreme Court calls for more careful scrutiny of laws affecting the right to keep and bear arms.
If I may take a moment to point something out to my conservative viewers. You guys are in an ideal position to take back the house and senate right now and make significant gains in more liberal state governments in the upcoming midterm elections - and all you have to do is not fuck up. Yet, I can’t imagine a bigger fuck up than to start pushing social conservative issues right now. If fighting for abortion for you is such an important issue that you are willing to do it knowing that it will cost you the election then by all means proceed. I would never suggest someone betray their own morals and convictions if you believe advocating for pro-life policies as more important than practical issues, such as winning elections. But just understand that is what you are doing. You are costing yourselves the ability to get reelected and are giving the left another two years to do all the things they have been doing for the last two years that you hate so much…. All you guys have to do is not fuck up and there are many other important issues outside abortion you can rollback, Threes a number of issues you guys could take up together with libertarians and moderate liberals and create a fairly broad coalition to do some very good things. Pushing abortion will cost you the ability to gain control to take on plenty of other important issues
There has been a very interesting recent development in the ongoing battle over SB 8. When the US Supreme Court punted on Jackson it went back to the lower Courts, in which the Texas Supreme Court addressed issued raised by the majority and dissent of Jackson by the US Supreme Court a few months earlier.
In December, the Supreme Court of the United States decided Whole Woman's Health v. Jackson. This case ruled that abortion providers could not sue the Attorney General, state judges, and clerks of court. These state officers had no role to enforce S.B. 8. But Justice Gorsuch's majority opinion suggested that state licensing officials may play some role in enforcing the law:
On the briefing and argument before us, it appears that these particular defendants fall within the scope of Ex parte Young's historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas's Health and Safety Code, including S. B. 8. See, e.g., Tex. Occ. Code Ann. §164.055(a); Brief for Petitioners 33–34. Accordingly, we hold that sovereign immunity does not bar the petitioners' suit against these named defendants at the motion to dismiss stage.
Ex Parte Young is a landmark Supreme Court case from 1908.
This case began when Minnesota imposed harsh penalties on railroads that violated state limits on what they could charge within the state. Northern Pacific Railway shareholders asserted that the laws violated the Fourteenth Amendment and the Dormant Commerce Clause, that the railroads should be released from the need to comply with the law, and that state Attorney General Edward T. Young should be enjoined from enforcing the law. The federal court granted the request for an injunction, since it was unpersuaded by Young that the Eleventh Amendment removed its jurisdiction over a case in which a state was sued by a citizen of another state (in this case, the shareholders).
In an 8-1 majority opinion the Supreme Court held:
If government officials attempt to enforce an unconstitutional law, sovereign immunity does not prevent people whom the law harms from suing those officials in their individual capacity for injunctive relief. This is because they are not acting on behalf of the state in this situation.
-Ex Parte Young, 209 U.S. 123 (1908)
It may be worth noting that the underlying Constitutional reasoning comes from the fact that the 11th Amendment does not prohibit suits between states or suits by the United States against a state. More subtly, it allows individuals to sue local governments because they are viewed as more similar to corporations than state governments.
But getting back to the majority in Jackson, The amount of hedging one’s argument that Justice Gorsuch was able to fit into one paragraph is almost impressive if not slightly maddening in the way its trying far too hard to obfuscate what should actually be a very simple conclusion .Justice Gorsuch took pains to not forcefully disagree with Justice Thomas, who determined that the licensing officials cannot enforce the statute.
On remand, the Fifth Circuit certified a question to the Texas Supreme Court: did the state licensing officials enforce the statute? Today, SCOTX answered the question no. Justice Boyd wrote the majority opinion for the unanimous Court.
This case out of Texas is noteworthy for a few reasons. The most important is its flat out rejection of the court’s absurd precedent of Judicial Supremacy set in Cooper v Aaron. In as far as the Texas Supreme Court roundly rejected Coopers primary holding I commend them. Because despite the name, nothing about the Supreme Court is Supreme. The Constitution is supreme, the Court’s opinions on the constitution are not. I’ve talked about this in past videos about Cooper, as well as several Covid mandate cases. It is rare that a state court formally disagrees with the United Supreme Court, but this is such a case. Judicial Supremacy is a concept regularly defended by Justice Breyer and Justice Sotomayor. But it’s most zealous defender is the Chief. It was a treat to see Chief Justice Roberts's judicial supremacy so strongly rebuked. It is very rare that Roberts gets overruled. It happened. He deserves it. Period.
Second, Justice Thomas is vindicated. Thomas was the only Justice willing to adopt the most natural reading of S.B. 8. Josh Blackman, a Constitutional lawyer from the South Texas College of law summed it up this way:
The cynic in me thinks that at least some of the Justices in the majority were unwilling to adopt a reading that foreclosed every possibility of relief. Better, the thinking goes, to at least signal that there may be some way for the abortion clinics to prevail, even if that relief was meaningless. You know, force the journalists to write about a "divided" ruling or some such pablum. Gorsuch's hedged decision reflects an effort to keep a majority together.
I want to close by talking about the reasons that SB 8’s opponents should be very optimistic about seeing this law overturned.
The first reason opponents should be hopeful this law won’t be successful is precisely because so many of its conservative supporters are so sure that it has succeeded that they have already begun to overplay their hand. This will horribly backfire if they don’t get it under control fast.
In Missouri alone we see several new bills that have been introduced:
SB 753, proposed by Sen. Eric Burlison, R-Battlefield, would require medical providers to perform life-saving care to infants who are born alive during abortions, even if it’s against the parents’ wishes.
It would establish the Born-Alive Abortion Survivors Protection Act — a provision that is modeled after a proposed federal law that has yet to pass.
SJR 34 proposed by Sen. Bill Eigel, R-Weldon Spring, would amend the state’s constitution to prohibit the General Assembly from appropriating money to any medical facility that performs abortions, excepting hospitals.
While not out rightly stated in the amendment, the legislation targets Planned Parenthood since it is the only non-hospital medical facility that performs abortions in Missouri.
Proposed by Sen. Rick Brattin, R-Harrisonville, SB 778 is a copycat of the controversial Texas bill that bans abortions when a fetal heartbeat is detected and allows private citizens to act as the law’s enforcers.
Brattin’s bill would establish a way for private citizens to sue anyone who performs an abortion when a heartbeat is detected or who engages in conduct that helps facilitate the abortion — including reimbursing the costs of the abortion through insurance.
Another House bill, which had a hearing Wednesday, would criminalize producing, selling, buying or using any medical device or drug to perform abortions. HB 2810 was proposed by Rep. Brian Seitz, R-Branson.
In the meantime, we should not forget that a Texas state court ruled in December that SB 8's delegation of enforcement to private parties violates the Texas Constitution. That ruling is now on appeal, and the trial court did not issue a injunction against enforcement of SB 8 while litigation continues. Nonetheless, it is entirely possible that SB 8's private enforcement ploy will ultimately be defeated in state court.
A state-constitutional ruling against SB 8 cannot prevent other states from imitating the statute. Those states' constitutions may not constrain enforcement delegation in the same way. But a Texas state ruling against SB 8 might at least have some persuasive value for other state courts. At the very least, state constitutional challenges are an additional tool in the armory of those who seek to counter this pernicious strategy for undermining constitutional rights. But there too, there is recourse.
Federal law has never guaranteed a right to a pre-enforcement constitutional challenge to a law. In particular, when it comes to civil lawsuits (including ones that implicate constitutional rights, such as the Free Speech Clause, the Free Exercise Clause, the Second Amendment, and more), potential targets must often wait until they are sued and then raise the Constitution as a defense, rather than by suing up front. Pre-enforcement challenges to governmental enforcement do happen, because one can seek an injunction against the enforcer. But when it comes to tort liability in which there could be a wide range of potential plaintiffs, such pre-enforcement challenges are usually unavailable, since there's no particular person one can sue up front. Again, constitutional rights can still be vindicated; they just have to be raised defensively in response to a lawsuit, rather than preemptively in the rightsholder's own lawsuit seeking an injunction. We see this in many free speech cases, such as New York Times v. Sullivan and Snyder v. Phelps: When speakers feel chilled by unconstitutionally overbroad tort rules related to, say, libel (Sullivan), or intentional infliction of emotional distress (Snyder), or the right of publicity (an area that remains unresolved), they generally need to raise the defenses after they are sued—the New York Times, for instance, couldn't just sue the state of Alabama before Sullivan's lawsuit in federal court to try to get Alabama's libel law narrowed.
The same would apply to tort lawsuits against gun manufacturers, gun sellers, or gun owners as well; any Second Amendment defense, or for that matter any federal statutory defense under the Protection of Lawful Commerce in Arms Act would have to be raised as a defense, not as a pre-enforcement challenge against state court judges or clerks. To be sure, the very presence of such civil causes of action may create a "chilling effect"; but that has historically not been seen as enough to create a categorical entitlement to filing a pre-enforcement challenge to block the civil cause of action.
But the best example of this is a landmark case that was a direct predecessor to Roe v Wade as the first case to establish the modern right to privacy as a matter of substantive due process of the 14th amendment. This right to privacy and Griswold specifically were the main precedent cited by Justice Harry Blackmun, who authored the majority opinion in Roe.
Griswold v. Connecticut is a landmark case that established U.S, citizens’ right to privacy under the Constitution. The case involved Estelle Griswold, the executive director of Planned Parenthood, and the Connecticut court, which found Griswold and other medical professionals in violation of a state law that criminalized counseling and other medical treatment regarding contraception to married couples. Griswold, on behalf of Planned Parenthood, argued that Connecticut’s law and subsequent punishment to Griswold was in violation of citizens’ privacy. The case called into question whether the Constitution protects the right of privacy, specifically marital privacy, against state’s restrictions. SB 8 will simply require another Estelle Griswold, willing to break the law precisely so they can challenge the law.
There is another incredibly elegant and superior option. This option was actually laid out in an amicus brief filed by the Firearms Policy Coalition in Jackson.
In their Amicus Brief, they urged an alternative, even better approach: doing away with sovereign immunity limitations on suing state officials for violating constitutional rights protected by the 14th Amendment. As this Amicus brief explains:
These restrictions have no basis in the text and original meaning of the Constitution, and they go against the central purpose of the amendment, which was to ensure effective enforcement of constitutional rights against state governments, including through federal courts.
The FPC's opposition to S.B. 8 is also yet another sign that the law menaces far more than just abortion rights. The Firearms Policy Coalition, as its name implies, is a libertarian-leaning group concerned about threats to gun rights.
This of course only further strengthens the argument that Texas’ law, if not impeded in it’s original formulation as anti-abortion legislation remains good law, there is undoubtedly much more at stake than a Women’s right to choose.