Solving the Procedural Puzzles of Texas’ Fetal-Heartbeat Law and its Imitators: The Potential for Defensive Litigation

65 Pages Posted: 18 Oct 2021 Last revised: 6 Sep 2022

See all articles by Charles W. (Rocky) Rhodes

Charles W. (Rocky) Rhodes

South Texas College of Law

Howard Wasserman

Florida International University (FIU) - College of Law

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

Suggested Citation

Rhodes, Charles W. (Rocky) and Wasserman, Howard, Solving the Procedural Puzzles of Texas’ Fetal-Heartbeat Law and its Imitators: The Potential for Defensive Litigation (October 15, 2021). SMU Law Review (2022), 75 SMU L. REV. 187 (2022), Florida International University Legal Studies Research Paper No. 21-26, Available at SSRN: https://ssrn.com/abstract=3943555

Charles W. (Rocky) Rhodes (Contact Author)

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States
713-646-2918 (Phone)

Howard Wasserman

Florida International University (FIU) - College of Law ( email )

University Park, DB 2065
Miami, FL 33199
United States
305-348-7482 (Phone)

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