FBANC Denounces the Supreme Court’s Denial of a Preliminary Injunction in the Enforcement of the Texas Law Called Senate Bill 8
On September 1, 2021, the Texas law called Senate Bill 8 (S.B. 8), came into effect, banning pregnant women from obtaining an abortion after only six weeks. The U.S. Supreme Court refused to block its enactment, with a vote of 5 to 4 in the Whole Woman’s Health decision, which was accompanied by an opinion no more than two pages long. Despite the consequences of the decision running contrary to fifty years of established precedent, the Supreme Court refused to grant a preliminary injunction on procedural grounds and skirted away from addressing the unconstitutionality of the new law on the merits. The Filipino Bar Association of Northern California (“FBANC”) denounces the manner in which the Supreme Court reached its decision, which raises at least three procedural questions.
Foremost, as a professional organization committed to upholding constitutional protections and due process, FBANC seeks to carefully analyze S.B. 8. The Supreme Court in Whole Woman’s Health failed to interpret in good faith fifty years of precedence under Roe v. Wade and its progeny which prohibits imposing undue burden to a woman seeking an abortion before the fetus attains viability. Most troubling, the Supreme Court did so in an unsigned opinion without oral argument or rigorous analysis of the issue on the merits through a procedural mechanism known as the “shadow docket.” FBANC is deeply troubled by the increased use of the exceptional mechanism of the Supreme Court’s “shadow dockets,” which in the last several years has been used to scale back constitutional rights without the traditional due process that underlies our adversarial system.
FBANC also expresses concerns about how the Supreme Court has blatantly overlooked S.B. 8’s enforcement mechanism, which in effect prohibits the exercise of a constitutional right well established under the Due Process Clause of the 14th Amendment by deputizing private actors as its enforcers. For instance, women intending to get an abortion must be prepared to face a private plaintiff in a civil court potentially at a different county where plaintiff lives. Section 171.210(a)(4). S.B. 8 Plaintiffs are not a public enforcement body acting on evidence and guided by standards because the law delegates power to deny abortion to private, nongovernmental entities. Texas deputizes neighbors, family members, and even the partners of pregnant women to enforce its anti-abortion provisions in S.B. 8, without requirement that they act on substantial evidence and demonstrate sufficient standing. The only clear requirement to be a plaintiff is not to be an officer or employee of a state or local governmental entity in this state. Section 171.208. If this private enforcement scheme is able to avoid proper constitutional scrutiny, the Supreme Court’s refusal to act in this instance raises additional questions as to what other constitutional rights may be prohibited in the same manner.
Furthermore, FBANC disagrees with the Supreme Court overlooking the well-defined elements of standing, which traditionally requires that the plaintiff has suffered an injury as a result of the defendant’s conduct. Under S.B. 8, the definition for those exposed to civil liability for aiding or abetting are amorphous and undermines due process. For example, rideshare drivers who unwittingly drive a pregnant woman to an abortion clinic could be fined $10,000 in civil damages, if unable to meet its burden of proof of an affirmative defense by a preponderance of evidence. Section 171.208(f). The two affirmative defenses available are: (1) after conducting a reasonable investigation, that the physician performing or inducing the abortion had complied or would comply with this subchapter; or (2) a person sued under Subsection (a)(3) reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion will comply with this subchapter.
S.B. 8 also raises questions about the punitive standards placed on defendants. For example, the following defenses are barred in Section 171.208: ignorance or mistake of law; belief that requirements in the law are unconstitutional; reliance on any court decision that has been overruled or appealed by a subsequent court even if that court decision had not been overruled when the defendant engaged in conduct; reliance on any state or federal court decision that is not binding on the court in which the action has been brought; non-mutual issue preclusion or non-mutual claim preclusion; consent of the fetus; or any claim that the enforcement of this subchapter or the imposition of civil liability against the defendant will be provided by Section 171.209, the undue burden defense limitations. Most cruelly, there is no exception for rape or incest.
S.B. 8 points out another auspicious move towards unfettered power by implementing a pathway of litigation that delegates power to a constitutional right by allowing private, nongovernmental entities to file a claim against the potential defendants above. S.B. 8 further divides our nation while steering the U.S. Supreme Court towards the untenable road towards undoing constitutional protections for individuals. The use of the shadow docket to prohibit the exercise of a constitutional right further undermines the credibility of the Court. FBANC stands against such an undemocratic process.
Contact FBANC Directors Joey Badua joeybadua@fbanc.org and Bonifacio Sison bonifaciosison@fbanc.org and FBANC President Jennifer Sta.Ana jenniferstaana@fbanc.org for more information.
About FBANC
Established in 1980, FBANC is an organization of attorneys, judges, and law students dedicated to serving the Filipinx and Filipinx-American community. Through the volunteer work of its members, including lifetime members, FBANC offers various service programs, including regular, free legal clinics, professional development programs for attorneys, and mentorship for law students and young attorneys. The organization also provides a voice for and advocates on behalf of Filipinx and Filipinx-American interests in various forums.