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Monday, September 06, 2021

Searching for Estelle Griswold and more SB8 developments

Two items on SB8 and the developing conversation.


Estelle Griswold has entered the public discussion around SB8. Griswold was the executive director of the Planned Parenthood League of Connecticut who (along with Dr. C. Lee Buxton, a ynecologist)  violated Connecticut's ban on contraception, was prosecuted and convicted of aiding-and-abetting contraception, and appealed to SCOTUS for the opinion that established the constitutional right to reproductive privacy. Josh Blackman and David Garrow (Garrow's op-ed is behind a Houston Chronicle paywall, but the linked Faculty Lounge post quotes the key paragraphs) both tell Griswold's story and suggest that some abortion provider or advocate must follow suit in performing or aiding a post-heartbeat abortion.

But Garrow gets the process wrong, arguing that upon the lawsuit, Griswold's heir can file a federal suit against the judge assigned the case. I continue to reject this possibility because state judges are not the appropriate targets for offensive litigation designed to stop enforcement of a law. If they were, every media outlet or other defendant sued in state court for defamation would do what Garrow suggests (a defamation suit against protected speech violates the First Amendment as much as an SB8 suit violates the Fourteenth Amendment). That this never happens suggests something about the shape and structure of constitutional litigation. It is telling that Garrow tells Griswold's story, then describes a process different than the one she followed. She did not sue the state judge; she raised constitutional defenses in the criminal case, was convicted, and appealed the conviction to SCOTUS (which at the time had mandatory jurisdiction), which declared the law invalid and overturned the conviction. In other words, Griswold litigated the constitutional issue in a defensive posture in state court--exactly as we argue providers and advocates must do with SB8.

We cannot understand the procedural posture of Griswold without understanding Poe v. Ullman, four years earlier. Poe arose from several (state) declaratory judgment actions against the state AG challenging the validity of Connecticut's contraception ban. The Court held that the appeal was not ripe, because the plaintiffs could not show that the AG intended to immediately enforce the contraception laws, which had been the basis for one prosecution in more than 80 years. Justice Brennan concurred in the judgment to provide the fifth vote, arguing that the individual couples who brought these actions could not fear prosecution because they were not the real targets of the law. He argued that the "true controversy in this case is over the opening of birth-control clinics on a large scale; it is that which the State has prevented in the past, not the use of contraceptives by isolated and individual married couples." With offensive litigation off the table, defensive litigation became necessary, with the large-scale clinic violating the law and defending against the prosecution by arguing the law is invalid.

As in Connecticut in 1961, offensive litigation is off the table because there was no threat of public enforcement. The reason varies--no intent or history to enforce as opposed to no power to enforce; but we end in the same place. So the solution is defensive litigation--violate the law and assert the Constitution as a defense to liability.


On Thursday, President Biden called for a "whole-of-government effort" to find ways to protect reproductive rights as against SB8. On Monday, Merrick Garland announced that DOJ is exploring "all options to challenge Texas SB8 in order to protect the constitutional rights of women and other persons, including access to an abortion." What might those efforts include? Garland points to the Free Access to Clinics Etrances (FACE) Act, which prohibits obstruction of access to clinics. This works to the extent SB8 bounty-hunters are interfering with clinics or threatening clinic workers and clients (and reports suggest that happening on the ground); it does not do much to stop anyone from filing an SB8 lawsuit.

Lawrence Tribe argues in the Washington Post that the U.S. should prosecute SB8 plaintiffs under § 242 (the criminal counterpart to § 1983). He is not alone in this idea. "Under color" means the same thing for both statutes and both can reach private actors. Most prosecutions, particularly those from the Civil Rights Era, involved private individuals conspiring with government officials, although I have found lower-court prosecutions of private actors under a traditional-public-function analysis. This option stands or falls with our argument for § 1983 suits against bounty-hunter plaintiffs--it works for both or it does not work for both.

The larger problem for a § 242 prosecution is that the defendant must "willfully subject[]" a person to a deprivation of rights. This imposes a specific-intent requirement--the defendant must have acted with the intent to deprive a person of their constitutionally protected rights. In the most common use of § 242 against police officers for excessive force, the government must show that the officer intended not to assault the victim, but to assault him so as to impose an unreasonable seizure; this forms part of the reason that § 242 cases are hard to prove and why DOJ prosecutes so few of them. The problem as to willfulness in these cases is that the SB8 plaintiff is acting pursuant to state law. His intent in filing suit is to recover remedies authorized by (presumptively valid) state law and perhaps to produce a change in the judicial interpretation of the Fourteenth Amendment, as opposed to depriving any person of their constitutional rights. Tribe's rhetoric aside, people bringing lawsuits in state court to enforce a state statute seems a distance from the Klan lynching people for trying to vote. The government would have to show that the criminal defendant/SB8 plaintiff knew the law could never be declared valid.*

[*] Section 242's willfulness requirement overlaps with the good-faith defense that an SB8 plaintiff would have to any § 1983 action.

The necessary move for the government would be an action for injunctive relief against the State of Texas to stop the entire government from enforcing the law. The problem is finding a law that authorizes such a suit. Tribe argues the source is the All Writs Act--an injunction is a writ and an injunction prohibiting Texas from enforcing its law on the grounds that it violates the Fourteenth Amendment would be a writ "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Moreover, as someone argued on a listserv, a suit between the U.S. and a state is within SCOTUS' original jurisdiction, which might allow the U.S. to fast-track its challenge.


Posted by Howard Wasserman on September 6, 2021 at 02:43 PM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink


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