TX state court declares SB8 procedures invalid

A state judge in Travis County declared that SB8's procedures violated the Texas Constitution because: 1) the legislature cannot grant"any person" injury-less standing; the $10,000 minimum damages is punishment without due process; and the law delegates enforcement power to private persons. The court granted a DJ but not an injunction. This is a state MDL case consolidating 14 state-court lawsuits by various providers and advocates against Texas Right to Life and other potential defendants. The case addresses the state procedural issues we address in our second paper and an as-yet unwritten fourth paper on state procedure in potential enforcement actions. The court reached those issues pre-renforcement.

I leave to Rocky whether the court got it right on Texas standing; I think the court gave short shrift to past cases in which the legislature has authorized random people to sue. Two other quick thoughts.

1) The court explains that SB8 plaintiffs would act under color of law and an SB8 defendant could raise that as a defense in an enforcement action, therefore the court allows providers to raise state action pre-enforcement, rather than making them wait for ruinous lawsuits to be filed. The court cites a Texas Supreme Court decision adopting the Bobbitt/SBA theory of pre-enforcement standing, requiring a credible threat of enforcement. In the federal litigation, providers cannot show that any particular potential SB8 plaintiff intends to file suit so as to establish standing to sue that person; WWH relies on the goofy theory of suing judges and clerks because they recognize that problem. This court ignores that issue, never explaining why TRTL or any other defendant, even if a state actor in bringing an SB8 action, is the source of the "real and serious threat" to enforce. If Texas standing matches Article III, that cannot be right.

2) The court sounds the recurring theme of similar laws with similar bad procedures attacking gun rights and anti-LGBT+ bakers. The latter is an odd example. As the court notes, lawmakers would not need "any person" to chase the baker. Current law allows for one and perhaps hundreds of easy lawsuits. Again, if the point is SB8 represents some unique and unprecedented procedural attack, the court is wrong.

SCOTUS announced released opinions tomorrow. Maybe we finally get SB8. Although this case may obviate the need to decide the federal cases. If private SB8 lawsuits--the sole mechanism for enforcing the heartbeat ban--are impermissible, there is no need for a federal court to resolve the validity of the heartbeat ban, as there is no threat of enforcement. Perhaps more tomorrow.