Against the Well Pleaded Complaint Rule

A point I neglected to make in my post on the Texas fetal-heartbeat law: This illustrates the strongest criticism and biggest problem with the Well Pleaded Complaint Rule.

The argument against the rule is that the benefits of a federal forum--uniformity, respect for federal rights, and expertise in federal law--apply regardless of where and how a federal issue arises. A federal forum is as necessary for a federal defense or a counterclaim as for a claim. Just as The New York Times would have liked a federal forum against Alabama officials using state-law defamation as the functional equivalent of seditious libel against truthful reporting of government misconduct, so does Planned Parenthood need a federal forum against random Texans attempting to bankrupt them into practically depriving women of their opportunity to engage in constitutionally protected activity.

Preenforcement challenges to state laws are important not only because it allows a rights-holder to assert her rights without having to face legal jeopardy, but because they give the rights-holder access to a federal forum. Combining purely private enforcement with the WPC deprives Planned Parenthood of any federal forum (save the unlikely SCOTUS review) in these cases.