The Firearms Policy Coalition Offers a Simple Way to Resolve the Texas SB 8 Case

Supreme Court


It is almost time for the Supreme Court to take a seat Whole Women’s Health: JacksonOne of the two lawsuits filed against Texas’ SB 8 antiabortion law. Because all law enforcement is delegated exclusively to private litigants (bounty hunting), the case centers on whether or not abortion providers can challenge the law before federal courts. If they succeed, the plaintiffs could win awards of up to $10,000. The Supreme Court has a tradition that plaintiffs must file a preenforcement suit against the state to sue it for violating their constitutional rights. This lawsuit can only be filed against specific officials and may not be stopped by the court. It appears that there is no potential defendant in this instance, as no official from the state can enforce the law.

As I explained in an earlier blog post on the SB 8 litigation: If this subterfugee is allowed stand, it will create a roadmap for avoiding judicial reviews for any other violations of constitutional rights by states. You can limit enforcement to private litigants and be good to go.

Firearms Policy Coalition, who was involved due to potential Second Amendment rights threats, filed an amicus short that offers a straightforward solution. (See also Jonathan Adler’s post on the brief).

Constitutional rights are violated by laws that restrict or inhibit the exercise thereof. These deterrences or chills are a present danger for which litigants can seek redress. However, they don’t need to incur the huge costs and risk of trying to get justice by breaking the laws. Even if the potential risk is due to private litigation, the state still has the responsibility for adopting and implementing state law. The state’s ability to invoke state power for such purposes, regardless of whether the potential plaintiffs are “deputized”, or the judges and court officials that have the authority at all stages of litigation, can result in the chilling effect of protected behavior. The Texas law was designed to achieve that result, biasing the field in a way that violates due process and the right to petition. It also breaches various provisions of the Constitution that are not related to the restriction on abortion. There should not be any serious obstacle to prohibiting state agents or actors from participating in this farce.

State courts, private litigants and state officials “deputized to enforce” laws such as SB 8 can all be treated as state actors and are therefore subject to injunction. The federal Constitution applies to state courts as well to other employees of the state government. They should not be subject to injunction if they are violating constitutional rights or threat to.

A step beyond the FPC brief, I believe that a federal court should be able, in situations like SB8, to stop the entire state government from acting as an entity, and not just a particular set of individuals (or private litigants “deputized”), instead. My previous blog post about SB 8 explained:

A court can issue a general order that prohibits the enforcement of unconstitutional laws by a judge even if it doesn’t know who, if anyone, plans to enforce them. Anybody Who might not otherwise be able to complete this task.

The injunction won’t be enforced if no one wants or can. In situations when it is hard to foresee who will violate constitutional rights, a general injunction may be useful in stopping violations.

This brief explains why the FPC approach is compatible with the Fourteenth Amendment. This follows from the Privileges and Immunities Clause.

[T]He Fourteenth AmendIt would appear that ment will supersede all previous potentials State sovereign immunity against violation of the  federal Constitution. Let’s take a look at PrivilegesOr For example, the Immunities Clause allows a state to not violate its obligations.  “Make and enforce any law to abate” Privileges and immunities enjoyed by citizens of the United States
States U.S. U.S. CONST., amend.

You will notice that the text does not allow “making laws” that would reduce privileges or immunities, nor “enforcing them”. State legislatures are the legal entity responsible for making laws. This allows the possibility of injunctions that will make unconstitutional acts null and void. As the FPC brief points out, many conservatives, including Supreme Court justices  Thomas and Gorsuch have long argued that the Privileges or Immunities Clause is the right vehicle for “incorporating” the Bill of Rights against the states. Other rights, including any right of abortion as a constitutional amendment, are also protected and can be used to enforce privileges.

This approach has the obvious drawback of opening up state to frivolous lawsuits. Perhaps so. But federal courts have a variety of tools for swiftly disposing of frivolous suits, including using Federal Rule of Civil Procedure 12(b)(6), which allows dismissal of a complaint for  “failure to state a claim upon which relief can be granted.” To prevent frivolous litigation, judges don’t have to accept assaults upon judicial SB 8.

FPC’s brief also highlights the concise and compelling summary that explains why constitutional rights violators should be challenged in preenforcement (see pp. This brief can be found at pages 4-10. It points out that SB 8’s structure (pp. It points out (pp. 9-10) that SB 8’s design may be more dangerous than any other law intended to limit the exercise of constitutional rights.

As I stated in my earlier post, my criticism of SB 8 was It is not Concerning the subject of “whether” Roe V. WadeShould be struck down or restricted, or whether there are any constitutional rights to abortion? My concern is to prevent SB 8 creating dangerous roads for the undermining of judicial protection of wide variety of constitutional rights.

My strategy is: It is notThe Supreme Court or other courts cannot simply rule against abortion rights, or other constitutional rights claims on their merits. If the Court wishes to rule against itRoe v. WadeBecause the majority of justices believe it’s terrible, they still have the right to do so. This is true for Citizens UnitedDecisions protecting gun rights and other such matters. I propose to not freeze any existing precedents, but to stop private enforcement mechanisms being used as a way to avoid judicial review of laws that may threaten constitutional rights. This could lead to dangerous “chilling” effects.

This is a worthy goal, regardless of your thoughts. Roe V. Wadeand rights to abortion. Even though you support Texas’s circumvention RoeYou might be less happy to see tools being used to undermine constitutional rights that you are more concerned about.