Solving the Procedural Puzzles of Texas’ Fetal-Heartbeat Law and its Imitators: The Limits and Opportunities for Offensive Litigation

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 focuses on "offensive" litigation, in which a rights-holder sues government officials, usually in federal court, seeking to enjoin enforcement of the law against her. The article considers how the law stymies the typical approach of suing the responsible executive officer because no executive officer is responsible for enforcing the law, then identifies other paths into federal court, notably by suing private SB8 plaintiffs who act "under color" of state law. It also considers how an offensive suit by the United States to enjoin enforcement of the law creates new, if limited, opportunities for judicial review.

Keywords: Federal Courts, Reproductive Rights, Civil Rights, Procedure, Jurisdiction, Constitution