Response to Wasserman and Rhodes: The Texas S.B. 8 Litigation and “Our Formalism”

Abstract

In Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: The Limits and Opportunities of Offensive Litigation, Professors Howard Wasserman and Rocky Rhodes explain why the U.S. Supreme Court correctly rejected the pre-enforcement legal challenge brought by abortion providers challenging Texas’s draconian abortion law, S.B. 8, which was specifically designed to evade such challenges. Wasserman and Rhodes also provide grounds for hope on the part of future similarly situated challengers to S.B. 8 copycat laws, outlining a route by which the clinics could have engaged in offensive federal-court litigation against “any person” plaintiffs who seek to bring lawsuits under S.B. 8.

Wasserman and Rhodes’s argument is persuasive and elegant. It works within a formalist maze of procedural complexities, charting the narrowest of pathways through that maze. But in doing so, it may underestimate the extent to which S.B. 8 succeeds in chilling any attempts to provoke the sort of “any person” lawsuit that is a necessary predicate to bringing the sort of offensive litigation that the authors advocate. This Response, therefore, argues instead for a return to the true spirit of Ex parte Young and to the policies underlying the availability of pre-enforcement injunctive relief in constitutional cases.

Keywords: Ex parte Young, Federalism, abortion, preenforcement challenges

JEL Classification: K41