The Legal Battle Over Texas SB 8 is Far From Over

The Texas Supreme Court has ruled Friday that Texas SB 8 is not subject to the jurisdiction of state medical licensing agencies. This controversial Texas law prohibits abortions within six weeks after the conception. Josh Blackman, a co-blogger and one of SB 8’s defenders, claims that the ruling ends any lawsuits challenging the constitution of the law. Such triumphalism, however, is premature.

In the SB 8 lawsuit, it is important to determine if Texas has the ability to evade judicial scrutiny by delegating enforcement authority only exclusively for private parties. (See here and here). SB 8 appears to ban state officials from enforcing the law, but instead delegated it to private litigants. Each one could win at least $10,000 per victory in any lawsuit they bring against those who break the law’s provisions.

The SB 8 scheme could be used to undermine other constitutional rights and delegate enforcement to private entities if it succeeds. It would also bar preenforcement suits against law that violates such rights. Even if defensive litigation was possible, the potential for civil liability could prevent the exercising of rights.

The state has no limits on the liability it can place on violators, as Texas’ solicitor-general admitted during oral argument before the Supreme Court. A state may increase damages by up to $1 million if 10,000 isn’t sufficient to chill the public.  Many other states, including California’s attempt to take down gun rights, have begun to copy Texas’ strategy.

Whole Woman’s Health, v. Jackson, In December the Supreme Court ruled abortion providers who challenge SB 8 can’t sue Attorney General Texas, state judges, court clerks and one individual. However, eight out of nine justices supported the possibility that plaintiffs might sue state medical licensing authorities. They had authority to enforce SB 8 and denial of licenses for practitioners who have violated the provisions of Texas’s Health and Safety Code. 8.” 8

The US Court of Appeals for Fifth Circuit certified the state law question to Texas Supreme Court on remand. It has since concluded that licensing officers are not authorized to enforce SB 8 “directly and indirectly”. But, it does not mean that plaintiffs are unable to sue other state officials. Gorsuch’s logic, as I previously noted, may allow lawsuits against officials who are charged with the enforcement of state court judgements. These people do not have the status of judges and are therefore exempt from Supreme Court precedents that limit injunctions against proceedings at state courts. It is possible that other officials from the state, not judges, may assist in the enforcement and execution of judgements.

Opponents of SB 8 might do well to find all possible defendants and file cases against them. Gorsuch was joined by at least two justices (Kavanaugh, Barrett) who expressed grave concern about SB 8’s potential threat to constitutional rights. To defeat SB 8 in future cases, only one “Gorsuch 4” justice must switch. In their December opinions, Chief Justice John Roberts and the three liberal justices indicated that they were open to considering allowing suits against state court clerks.

When it comes to making such predictions, I’m far from perfect. However, it seems likely that at most one of these four could switch if presented with the option of modestly weakening SB 8’s sovereign immunity and abstention doctrines and putting in jeopardy judicial protection of many constitutional rights.

Here are some reasons why conservative rights, as well as those of liberals, may be endangered. California’s proposal to restrict gun rights is a further proof of this fact. Future litigation about SB 8 (and possibly other state laws inspired from it) will determine whether the Supreme Court and lower federal courts are prepared to confront the threat.

We should also not forget the December ruling by a Texas State Court that SB 8’s delegation of enforcement to private parties is a violation of the Texas Constitution. This ruling is on appeal. The trial court also did not injunct against the enforcement of SB 8 during litigation. It is possible, however that SB 8’s private enforcement tactic will be defeated by a state court.

An anti-SB 8 state-constitutional decision against a state cannot stop other states from following the example of SB 8. These states may have different constitutions that do not restrict enforcement delegation. A Texas court ruling in favor of SB 8 may have some persuasive power for state courts. The state constitution challenges, at the most, are an added tool in the arsenal of those seeking to combat this pernicious strategy that undermines constitutional rights.

Like I said, SB 8 isn’t mainly about abortion. You can still support the Supreme Court limiting or overruling SB 8. Roe V. Wadeand any other precedents that protect abortion rights (which may happen in the near future). Dobbscase), then you should be concerned about any potential threat to our constitutional rights.

Summarising, it is clear that the legal battle for SB 8 and any other similarity elsewhere is still far from being won. The opposition should not lose heart.