Texas State Court Rules SB 8 Enforcement Mechanism is Unconstitutional

The ruling is mostly based on the Texas state constitution and probably will not affect the federal case challenging SB 8, currently before the Supreme Court. But it makes some notable points, nonetheless. This is a cross-post from the Volokh Conspiracy, December 9

Somin had more to say on SB 8 after the SCOTUS ruling last week see here and here

On December 9, Texas state trial Judge David Peeples issued a decision in Van Stean v. Texas Right to Life, holding that the controversial enforcement mechanism of the Texas anti-abortion law, SB 8, is unconstitutional. As with the SB 8 case currently before the federal Supreme Court, this state court ruling focuses on SB 8's unusual enforcement mechanism. It doesn't address the constitutionality of the abortion restriction itself.

SB 8 delegates enforcement authority exclusively to private litigants, who each stand to gain $10,000 or more in damages every time they prevail in a lawsuit against anyone who violates the law's provisions barring nearly all abortions that take place more than six weeks into a pregnancy. As I have explained in various previous posts on SB 8 (e.g. here and here), the purpose of this unusual structure is to evade judicial review by making it impossible for abortion providers to sue the state to block enforcement of the law. In a state lawsuit challenging SB 8 brought by fourteen different abortion providers, Judge Peeples has ruled that SB 8's enforcement mechanism is unconstitutional for three reasons: it authorizes lawsuits by parties who do not have standing because they have not suffered any injury; it is "an unconstitutional delegation of enforcement power to private parties;" and the $10,000 civil penalty qualifies as punishment without due process. Judge Peeples decided the former two issues under the Texas state Constitution. But the due process ruling is under the Due Process Clause of the Fourteenth Amendment.

A notable part of the ruling is the section (pp. 12-13) where Judge Peeples emphasizes that, if it is upheld, the SB 8 strategy for evading judicial review can be used to attack a wide range of other constitutional rights: "[I]f SB 8's civil procedures are constitutional, a new and creative series of statutes could appear year after year, to be enforced by eager ideological claimants, who could bring suit in their home counties… Pandora's Box has already been opened a bit, and time will tell."