Our first post described the two ways a rights-holder litigates federal constitutional rig...

The Procedural Puzzles of SB8, Part II: Failing Offensive Litigation – Reason

Our first post described the two ways a rights-holder litigates federal constitutional rights—offensively, by seeking from a federal court a declaratory judgment of invalidity and an injunction to stop enforcement of the challenged law, and defensively, by raising the constitutional invalidity of the enforced law as a defense in the enforcement proceeding. Major constitutional decisions have arisen in both contexts. The procedural controversy surrounding SB8 pits the legislative goal of stopping offensive litigation and channeling litigation into a defensive posture against abortion providers' desire to pursue offensive litigation in federal court. The latter explains why a collection of providers, medical …

 

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