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?

1 Answer 1


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.

  • en.wikipedia.org/wiki/… "State sovereign immunity does not extend to cases where a plaintiff alleges the state's action is in violation of the federal or state constitutions." Which it seems to me is exactly what the plaintiff would be alleging here. Commented Oct 22, 2021 at 22:37
  • @NateEldredge For all practical purposes an official capacity suit against an individual that represents the state is a suit against the state, and these are allowed when pursuing equitable relief pursuant to Ex Parte Young. This law was specifically designed to evade that mechanism though.
    – David Reed
    Commented Oct 24, 2021 at 6:52

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