71 Am. U. L. Rev. 1029 (2022).
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Abstract
The Texas Heartbeat Act, enacted in 2021 as Senate Bill 8 (S.B. 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 S.B. 8’s reliance on exclusive private enforcement at the expense of public enforcement creates procedural and jurisdictional hurdles to challenging the law’s constitutional validity and obtaining judicial review. This Article focuses on “offensive” litigation, in which a rights holder sues government officials, usually in federal court, seeking to enjoin enforcement of the law against that rights holder. 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; reproductive- health providers attempted that path and met with limited success before a divided Supreme Court. The Article identifies alternative paths into federal court, including suits against private “any person” S.B. 8 plaintiffs who act under color of state law. A suit by the United States against the State of Texas to vindicate federal interests and the constitutional rights of U.S. citizens offers a limited alternative, but not one likely to succeed.
* Professor of Law, FIU College of Law.
** Professor of Law and Charles Weigel II Research Professor of State & Federal Constitutional Law, South Texas College of Law Houston. Thanks to Josh Blackman, Arthur Hellman, Douglas Laycock, Lawrence Sager, Suzanna Sherry, Ilya Somin, Eugene Volokh and participants in the Civil Procedure Profs and ConLaw Profs listservs for comments, suggestions, and the exchange of ideas that helped improve this Article. Thanks to participants in the Civil Procedure Unavailability Workshop, October 2021; Civil Procedure Workshop, August 2021; Civil Procedure Discussion Group, Southeastern Association of Law Schools Annual Meeting, August 2021; Works- in-Progress Group, Southeastern Association of Law Schools Annual Meeting, August 2021; FIU/UM Summer Brown Bag, July 2021.