How Do You Solve a Problem Like SB8? Flagrantly Unconstitutional Laws, Procedural Scheming, and the Need for Pre-Enforcement Offensive Litigation

Authors

Kimberley Harris, Texas Tech University School of LawFollow

Document Type

Article

Abstract

Reproductive rights are facing multiple existential threats. While the Supreme Court has overturned the constitutional right to pre- viability elective abortions in Dobbs v. Jackson Women's Health Organization, in Texas the ability to obtain a pre-viability abortion vanished almost ten months earlier. With the enactment of S.B. 8, the so-called "Texas Heartbeat Act," abortions after approximately the sixth week of pregnancy, including those that result from rape or incest, were banned months before the Court ruled in Dobbs. Despite being clearly unconstitutional under the then-existing precedent of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, the Texas law was allowed to go into effect because of a unique and unprecedented scheme of private enforcement. This strategy, which was designed to insulate the State from responsibility for implementing and enforcing its regulatory regime, enabled Texas to evade judicial review for months while Casey and Roe were still the law of the land. While the Court refused to enjoin state judges and private actors from enforcing this law, abortion providers in Texas and the women they serve were irreparably harmed. Abortion providers, as well as anyone else sued under the law for "aiding and abetting" an abortion, faced the danger of being forced into a defensive posture to assert their constitutional arguments and being subjected to burdensome litigation, attorney's fees, and potential liability, with no guarantee that an appellate court would vindicate the then-constitutionally protected right to a pre-viability abortion. This article argues that federal legislation authorizing offensive pre- enforcement litigation is necessary when a state has usurped the federal power of defining constitutional rights by developing such an elaborate procedural scheme of private enforcement, as Texas has done with the enactment of S.B. 8 by prohibiting the vast majority of pre-viability abortions and deputizing private individuals to enforce its anti-abortion agenda, thereby eliminating the possibility of injunctions against State actors.

Recommended Citation

Harris, Kimberley (2022) "How Do You Solve a Problem Like SB8? Flagrantly Unconstitutional Laws, Procedural Scheming, and the Need for Pre-Enforcement Offensive Litigation," Tennessee Law Review: Vol. 89: Iss. 4, Article 3.
Available at: https://ir.law.utk.edu/tennesseelawreview/vol89/iss4/3

Publication Date

2022