SMU Law Review

ORCID (Links to author’s additional scholarship at ORCID.org)

Howard M. Wasserman: https://orcid.org/0000-0001-6306-8641


The Texas Heartbeat Act (SB8) prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the law adopts a unique enforcement scheme—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 SB8’s exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law’s constitutional validity and obtaining judicial review. This piece explores defensive litigation, in which a rights-holder violates the law, gets sued (usually in state court), and raises the law’s constitutional invalidity as a defense, asking the court to dismiss the enforcement action. The article compares numerous similar situations in which constitutional rights must be litigated defensively. It then examines the processes through which SB8 challenges can be litigated defensively; these include how providers might trigger a lawsuit, the role of “friendly” plaintiffs in bringing suit, limitations on state standing, and how the case can reach the Supreme Court of the United States for final review.