Texas SB8 Consequences ABC news reports: The Supreme Court will take up the Texas abortion law on the merits next month in a rare highly-expedited case that could definitively resolve the fate of its six-week ban and unprecedented enforcement mechanism. SB8 will remain in effect for the near future until the Court issues its decision, which wouldn’t typically be expected for weeks to months after a case is argued. If SB8 is found to be unconstitutional, would impacted parties (women that were denied abortions, abortion providers,) be precluded from relief resulting from SB8?
There is no prospect for equitable relief in such an outcome. The Texas state government enjoys sovereign immunity, except as specified under the Tort Claims Act. Under that law, immunity is waived only in the case of damage caused by negligence of a state employee, and is limited primarily to vehicle accidents and physical injuries. So the state cannot be sued for passing a law found to be unconstitutional. An individual would not enjoy such immunity, but given the law, there is no identifiable defendant to seek relief from (everybody is a potential defendant). An former abortion provider who now declines to perform an abortion can't be sued, because doctors in general have no obligation to perform particular medical procedures (most doctors in Texas won't perform an abortion, even before SB8), and the course will not render a judgment against a doctor on the grounds that they obeyed an existing law but should have known that it would be found unconstitutional.
From what I can determine, there has not been a legal challenge to the practice that reached a high enough level to get on my radar, so it's not clearly prohibited or allowed. Turning to the relevant federal regulations, the implementation of the Fair Housing Act, the law hinges in part on an Aggrieved person includes any person who— (a) Claims to have been injured by a discriminatory housing practice; or (b) Believes that such person will be injured by a discriminatory housing practice that is about to occur. In order to sue a university because they offer sex-separated halls, floors or rooms, a plaintiff would have to show that they have been harmed by being given such a choice. Reading the prohibitions in §100.50, there is no obvious "Discriminat[ion] in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities", and it does not "otherwise makes unavailable or denies dwellings". Cases like McLaurin v. Oklahoma State Regents, 339 U.S. 637 (a case putting an end to the "separate but equal" doctrine) include reference to the fact that appellant was harmed ("The restrictions imposed upon appellant impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession"). Analogously, the relatively rare black-only residences of UC Davis and Cal State LA might be targeted in a discrimination suit, if plaintiffs can make the required legal argument that there is harm.
To the extent Constitutionally permitted or as further limited by the state’s own law Constitutionality, a suit may be brought (or a prosecution launched) when the state has personal jurisdiction over the defendant. … a state court may only exert personal jurisdiction over an individual or entity with &quot;sufficient minimal contacts&quot; with the forum state such that the particular suit &quot;does not offend 'traditional notions of fair play and justice.'&quot; What constitutes sufficient &quot;minimum contacts&quot; has been delineated in numerous cases which followed the International Shoe decision. For example, in Hanson v. Denckla, the Court proclaimed the &quot;unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the nature and quality of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws.&quot; For the abortion bill, an organisation that provides funding to Texas residents probably has “minimum contacts”, an out-of-state doctor who treats all-comers probably doesn’t. For employment laws: if the employee is based and work takes place in the state, yes. There is a separate question of which state's law applies which is independent of which state's courts can hear the case. A California court can decide that it can hear a case according to Texas law for example although, in practice, if the California court felt that all of the issues were Texan, they would probably decide they lacked jurisdiction.
Any court from a municipal traffic court on up can declare a law unconstitutional and the U.S. Supreme Court is almost never the court that does so in the first instance. Also, while the jurisdiction stripping law that you suggest might be unconstitutional, it is not obviously unconstitutional. The relevant language is in Article III, Section 2 of the United States Constitution (this has been modified by the 11th Amendment in ways that are not pertinent to the issue at hand): The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The key language being the language in bold, who scope and limitations are the subject of hot debate in legal scholarship. For example, both military tribunal law for non-soldiers and the collateral review of death sentences implicate this provision. An issue related to U.S. Supreme Court jurisdiction over military court-martial court composition will be heard this year in oral argument before the U.S. Supreme Court. There is also debate over whether the jurisdiction of every single federal court can be removed from a matter within the judicial power of the United States. In that regard, keep in mind that the United States federal court system did not have direct appeals of criminal convictions at all until the 1890s, although you could challenge, for example, the jurisdiction of a criminal court over your case with a writ of habeas corpus which is a collateral attack on a conviction in a separate civil lawsuit formally directed at your prison warden. That being said, as far as I know, a law is considered in effect until declared unconstitutional. It is illegal to break an unconstitutional law, until declared so. You are wrong. A law that is unconstitutional on its face is, in terms of legal theory, unconstitutional immediately upon enactment and a court simply acknowledges that fact. It is not illegal to break an unconstitutional law even if no court has yet declared it to be unconstitutional (in U.S. jurisprudence). A law that is unconstitutional as applied is unconstitutional in application at the moment it is applied unconstitutionally, and again, a court merely acknowledges that fact.
Generally, a local county judge’s decision is not binding on the judgement of another judge unless it is that of an appellate division. The law of the case principle could be referred to as an argument if it would have been decided by another judge in the same case (some courtships work on a rotary basis with different judges sitting over a single case). This would mean that the court would give greater deference to that decision; however, applying the principle is a matter of administrative preference to save resources of the court. Whether or not the other judge would reconsider the matter would be within their discretion absent binding authority to the contrary as a “law of the case” is not binding. In fact, even if it would have been the same judge with the exact same facts deciding the matter in a final judgement, there wouldn’t be much to do. One could argue that deciding differently is a violation of the Fourteenth Amendment which, if the judge fails to explain the different decision on the exact same facts may have a reasonable probability to get overturned provided the unconstitutionality finding was correct in the first place. If the matter was, in fact, unconstitutional, appeals may overturn a contrary judgement if the issue is brought up in the lower court and enters the court record. It may have some weight still to cite the decision of the other judge as the argument may be given more weight than if merely delivered as the argument of counsel.
Before the election, can a lawsuit prevent the amendment question from being put on the ballot? No. Generally speaking, the constitutionality of an otherwise procedurally proper ballot initiative is not ruled upon until after it has passed (eliminating the need to rule unnecessarily on the constitutionality of failed initiatives). Of course, if someone tried to put it in the ballot when the existing law conditions for putting it on the ballot were not met (e.g. because a deadline for doing so wasn't met) that could be challenged in court by a party with standing to do so. If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional? Probably not. The constitution as newly adopted doesn't sound like it would forbid doing that. This seems to be the whole point of the constitutional amendment in the first place and it the amendment to the constition is approved, that requirement is gone.
The victims of these unconstitutional laws would likely not be able to recover any damages or refunds of their fees. Generally speaking, the only avenue to challenge fees imposed as a result of a criminal conviction for sodomy (or any other criminal law) is through a direct appeal of your conviction or sentence. The amount of time to raise that appeal is 30 days from the entry of the final judgment in most states, though it can be as low as 10 days in Virginia or as high as 90 days in Wisconsin. So by the time the court struck those laws down in Lawrence v. Texas, 539 U.S. 558 (2003), the only people who could still raise an appeal would probably be those who had been convicted in the month or so before the court's decision. Even then, many of those people would likely still be unable to appeal. If they paid their fine, they generally forfeit the right to seek to vacate it. If they pleaded guilty, they probably would have waived their right to appeal on constitutional grounds. If they failed to raise the constitutional defense, they probably waived their right to raise it on appeal as well. So now the only people who can seek to vacate their fines are those you're dealing solely with the people who raised a constitutional defense, were convicted anyway, and had not yet paid their fines. Probably a very small universe. The other possibility would be through a civil suit under Section 1983, alleging that the government infringed on their rights by bringing that lawsuit. There are several possible ways to get hung up here, as well. First, under Heck v. Humphrey, 512 U.S. 477 (1994), the courts can't allow a 1983 action based on a criminal conviction unless the conviction &quot;has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.&quot; Again, it would be too late to reverse the conviction, and habeas corpus would be unavailable for someone who had merely paid a fine. Perhaps one could obtain an expungement under a statutory procedure and characterize that as an executive order, but I don't know that that would be persuasive. Even if the plaintiff were able to address his conviction in one of those ways, the ongoing litigation over compulsory union fees makes me think he would probably remain unable to collect damages. In the union cases, the Supreme Court had previously explicitly allowed public-sector unions to impose mandatory union dues, and it then reversed course, finding those dues unconstitutional. Although the unions could no longer collect the dues, a question arose as to whether they had to refund the dues they had collected in the past. As far as I know, every court to consider the question has found that a &quot;good faith&quot; defense essentially immunized those unions from liability for damages based on the previous collection of dues. Analogizing here, the Supreme Court has previously explicitly permitted state anti-sodomy statutes in Bowers v. Hardwick, 478 U.S. 186 (1986), then reversed in Lawrence. In the meantime, many states collected fines from defendants convicted of sodomy in reliance on Bowers. So I suspect the courts would find that any municipal defendants in those cases would be eligible for the good-faith defense, and any individual defendants would be eligible for qualified immunity, as the illegality of their conduct was obviously not clearly established, given Bowers. So in short, I think any attempt to recoup those fees would fail.
The federal government has the power to regulate interstate commerce, and the current definition is incredibly broad -- certainly broad enough to include the provision of abortions. If it were challenged, the government would likely rely on Gonzales v. Raich, 545 U.S. 1 (2005). In Gonzales, two patients who used medical marijuana as authorized by state law challenged the federal government's laws prohibiting the use of medical marijuana. They argued that because they were growing their own marijuana, because it never left the state, and because it was for personal, noncommercial use, it was outside Congress' authority to regulate interstate commerce. But the Supreme Court rejected their arguments, holding that Congress could use its Commerce Clause authority to enact health-care laws regulating access to marijuana and pre-empt contradictory state health-care laws. The federal government's case for regulating abortions would be event stronger than its case in Gonzales: First, because obtaining an abortion is typically a commercial enterprise; it is likely covered by insurance, and even if it patient isn't charged, someone is likely paying the doctor money to perform it. Also, abortions more obviously implicate interstate commerce because patients frequently travel from state to another to obtain one, because clinics order supplies and services from outside the state, and because they rely on instrumentalities of interstate commerce (highways, telephone lines, the Internet) to do their job. Indeed, as far as I know, every court to consider the issue has concluded that regulating access to abortion is a straightforward application of the Commerce Clause. See, e.g., Terry v. Reno, 101 F.3d 1412, 1418 (D.C. Cir. 1996) (“Violent and obstructive activity outside abortion clinics adversely affects interstate commerce in reproductive health services. In enacting the Access Act, Congress did not exceed its Commerce Clause power.”); Cheffer v. Reno, 55 F.3d 1517, 1520-21 (11th Cir. 1995) (“Congress found that doctors and patients often travel across state lines to provide and receive services, id.; in other words, there is an interstate market both with respect to patients and doctors. In addition, the clinics receive supplies through interstate commerce. ... Congress' findings are plausible and provide a rational basis for concluding that the Access Act regulates activity which &quot;substantially affects&quot; interstate commerce. Thus, the Access Act is a constitutional exercise of Congress' power under the Commerce Clause.”); U.S. v. Wilson, 73 F.3d 675, 688 (7th Cir. 1995) (“the Access Act may be viewed as a direct regulation of interstate commerce and confirms once again that the Act is well within Congress's power to legislate under the Commerce Clause.”). Reacting to Dobbs, then, Congress could write a law finding that existing state laws pose a threat to the interstate markets for providing and receiving reproductive services, and then rely on those findings to say that the only limits on abortion are X, Y, and Z, and that states may not impose any additional restrictions.