« Number of FAR Forms in First Distribution Over Time - 2021 | Main | Possession as Estoppel—Last of a Lakefront Series on Property Law »

Wednesday, August 18, 2021

Solving the Procedural Puzzles of Texas' Fetal-Heartbeat Law

Posted to SSRN (corrected version) and appearing in a law review submissions box near you. Charles (Rocky) Rhodes (South Texas Houston) joined me with his expertise on Texas law and procedure. The paper expands on my posts on the subject to game out what providers and advocates can (and cannot) do offensively in federal court and defensively in state court. Here is the abstract:

The Texas Fetal-Heartbeat Law enacted in 2021 as Senate Bill 8 prohibits abortions after detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person.” Texas employed this enforcement mechanism to impose potentially crippling financial liability on abortion providers and advocates and to stymie their ability to challenge the law’s constitutional validity through offensive litigation in federal court to enjoin enforcement of the law. Texas lawmakers sought to confine abortion providers and advocates to a defensive litigation posture in state court.

This article works through the procedural and jurisdictional obstacles that SB8 creates for abortion providers and abortion-rights advocates seeking to challenge the constitutional validity of the fetal-heartbeat ban. While Texas has created a jurisdictional and procedural morass, the law does not achieve the ultimate objectives. Providers and advocates can litigate in federal court, although it requires creativity as to timing and proper litigation targets. They also should find greater success defending in state court than legislators expected or hoped. Other avenues remain to vindicate the rights of abortion providers and advocates—and the pregnant patients they serve--that accord with the traditional operation of and limitations upon the federal and state judiciaries in adjudicating constitutional rights.

Posted by Howard Wasserman on August 18, 2021 at 04:15 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Could an abortion provider give a woman an abortion and then sue itself under this statute? The abortion provider would seem to be "any person." Or you could have an abortion rights advocate sue the abortion provider and just return any proceeds from the suit back to the defendant. This would get a test case started, limit the downside to the abortion provider and highlight the absurdity of the no standing requirement of the statute.

Posted by: Jack D. Loftis, Jr. | Sep 2, 2021 6:26:08 AM

Standing in state court to sue under a state statute is a question of state constitutional law. There is reason to believe, as we argue in the paper, that there is no standing to bring these actions. But that is a question of Texas law, not the US Constitution. It so happens that Texas standing law looks a lot like Article III. But it need not. A state with more-forgiving standing rules could do exactly what Texas did here.

Posted by: Howard Wasserman | Sep 1, 2021 6:46:51 PM

I have a basic question. SB8 creates a private cause of action for any person to assert. But it seems that a person suing under the statute does not have standing or damages other than as created by the stature itself, which seems circular. The plaintiff would not be damaged by the abortion procedure and would seem to have any standing to sue other than the dubious rights created by the statute. I am used to seeing private causes of action created by statute (such as Rule 10b-5 violations based on securities fraud) requiring that the plaintiff have actual standing and damages. I think that all federal causes of action require plaintiffs to have standing but what about Texas state law? It does not seem that a state should be able to create a private cause of action for a plaintiff with no damages. If the enforcement framework of SB8 is permissible, then you could use that framework to prohibit any conduct. If it is not permissible, under what grounds would it not be permissible? I know that am mixing standing and damages concepts but I hope my question is still clear. If anyone has an answer to my question, perhaps that could send me an email.


Posted by: Jack D. Loftis, Jr. | Sep 1, 2021 6:31:31 PM

The comments to this entry are closed.