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Friday, December 03, 2021

Now what with SB8?

As Gerard and I wrote, it is not clear why the Court took the SB8 cases, much less on an expedited schedule, or why they would bother deciding them now.

New and deeply cynical take, courtesy of my co-author: The Court overrules Roe and holds in SB8 that states cannot insulate laws from offensive constitutional challenges, allowing claims against clerks, judges, or whomever. Note where that leaves us. The fetal-heartbeat law is likely valid (depending on how much the Court overrules Roe--whether rejecting viability as a line or eliminating all constitutional protection for reproductive freedom), so no harm in allowing those offensive cases to proceed in federal court, as they fail on the merits. But the Court protects the rights the majority cares about--guns, religious freedom--from similar laws channeling constitutional litigation onto defense.

Posted by Howard Wasserman on December 3, 2021 at 11:27 AM in Civil Procedure, Constitutional thoughts | Permalink

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