Texas State Court Rules SB 8 Enforcement Mechanism is Unconstitutional

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Texas State Trial Judge David Peeples made a ruling today in Van Stean v. Texas Right to LifeThe controversial Texas anti-abortion law’s enforcement mechanism, SB8, is deemed unconstitutional. This state court decision, like the SB 8 case before the Federal Supreme Court is focused on SB 8’s unique enforcement mechanism. The constitutionality of the restriction on abortion is not addressed.

The SB 8 law delegated enforcement power exclusively to private litigants. Each can win $10,000 in damages if they prevail in a case against someone who violates nearly all provisions of the law barring abortions more than six weeks after a woman’s due date. In previous posts about SB 8, I explained the following: This unusual structure was created to avoid judicial review. It makes it difficult for providers of abortion to sue the state in order to prevent enforcement.

In a state lawsuit challenging SB 8 brought by fourteen different abortion providers, Judge Peeples has ruled that SB 8’s enforcement mechanism is unconstitutional for three reasons: it authorizes lawsuits by parties who do not have standing because they have not suffered any injury; it is  “an unconstitutional delegation of enforcement power to private parties;” and the $10,000 civil penalty qualifies as punishment without due process.  The Texas state Constitution provided that Judge Peeples ruled on the first two points. The Due Process Clause is the Fourteenth Amendment.

The section (pp. The section (pp. 12-13), where Judge Peeples explains that the SB 8 strategy to evade judicial review could be used against a broad range of constitutional rights.[I]f SB 8’s civil procedures are constitutional, a new and creative series of statutes could appear year after year, to be enforced by eager ideological claimants, who could bring suit in their home counties… Pandora’s Box has already been opened a bit, and time will tell.”

He explains how SB 8-like mechanism can be used against gun rights and free speech rights.

SB 8 is a concern because if it’s civil procedures for abortions are legal, then they can be used to make other people law. To discourage undesirable activities from being pursued, other states or future Texas Legislatives might be able to copy the procedures and place them on substantive provisions. In our polarized country, other states with different electorates and different priorities might decide to use these procedures to put other people out of business or to stamp out behavior they dislike intensely, including other areas of life covered by constitutional law….

Make it A could copy the procedures and replace the abortion provisions with language that forbids openly carrying guns, or with language requiring trigger locks on all guns…

State BThe procedures could be used to enforce discrimination laws on bakery owners
who will not, as a matter of conscience, decorate a cake with a message that is offensive to them or that violates their religious beliefs…[citing the Masterpiece Cakeshop case]… To be effective, this statute would need to cover the bakery and its “aiders and abetters” (aka employees, suppliers, financial backers),who might quickly decide it is best to stop helping the bakery discriminate and thereby avoid these lawsuits….

The court might uphold the rights of the baker to not be required to say anything.
He may disagree with the message, but his company and other employees could be forced to go bankrupt. These procedures can be used to not only put people out business but also to challenge a controversial area of Constitutional law that a legislature strongly disagrees with. The procedures can be adapted by statutes to identify climate deniers or people who utter “hate language” or American History professors who either teach X or not X. This is a creative and diverse society, so it would be foolish to expect that these procedures won’t be taken down once they have been established.

According to Judge Peeples’s observation, SB 8 permits lawsuits against anyone “aiding or abeting” abortion providers. A similar law could be used against bakers to include their suppliers and employees. Conservatives concerned that blue states could make religiously-conservative bakers “bake the cake”, have cause to be worried about the precedent SB 8 might set. The same applies to people who are concerned about gun rights and free speech rights as well as any other constitutional rights that could be endangered by the left or right.

The danger of SB 8’s slippery slope has already been highlighted, most recently in an amicus brief submitted by Firearms Policy Coalition to the Supreme Court and several Supreme Court justices during oral argument. But Judge Peeples is a thorough analyst of the issue, especially when he emphasizes how SB 8’s aid or abet provision makes matters worse.

This ruling today is not a final declaration but a limited one. The injunction does not apply to all SB8 lawsuits. This means that it doesn’t apply to other SB 8 potential litigants. This does not, however, affect federal cases before the Supreme Court. The Texas case is focused on SB 8 violating various state constitutional requirements. Federal litigation concerning whether or not abortion providers and the federal government may challenge SB 8’s constitutionality can be brought in federal court. Private parties cannot sue. Additionally, Judge Peeples’ ruling will be challenged. These issues are still under review by the Texas Supreme Court.

Nonetheless,  the ruling makes some useful points that the federal Supreme Court justices would do well to take note of. This ruling could be a model for Texas courts to follow when assessing SB8 cases. This decision also highlights ways that SB 8-like statutes may be challenged under state constitutions. But, it is possible for the strength to differ from one state to another depending on their state Constitution jurisprudence.