Solving the Procedural Puzzles of Texas’ Fetal-Heartbeat Law and its Imitators: The Potential for Defensive Litigation
75 SMU L. REV. 187 (2022)
Florida International University Legal Studies Research Paper No. 21-26
65 Pages Posted: 18 Oct 2021 Last revised: 6 Sep 2022
Date Written: October 15, 2021
Abstract
Texas' Fetal Heartbeat Act, enacted in 2021 as Senate Bill 8, prohibits abortions following 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,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.
In a series of articles, we explore how SB8's exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law's constitutional validity and obtaining judicial review. This piece in the series explores defensive litigation, in which a rights-holder violates the law, gets sued (usually in state court), and raises the law's constitutional invalidity as a defense, asking the court to dismiss the enforcement action. The article compares numerous similar situations in which constitutional rights must be litigated defensively. It then examines the processes through which SB8 challenges can be litigated defensively; these include how providers might trigger a lawsuit, the role of "friendly" plaintiffs in bringing suit, potential limitations on state standing, and how the case can reach the Supreme Court of the United States for final review.
Keywords: Federal Courts, Reproductive Freedom, Civil Rights, Procedure, Jurisdiction
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