William & Mary Bill of Rights Journal
Abstract
[...] This Note examines the legal hurdles surrounding the novel “citizen deputy” statute—including its structure, the attendant legal doctrines, and its broader implications—using SB 8 as a test case for the analysis. While SB 8’s prohibition is no longer unconstitutional, the divisive history of the abortion debate that gave rise to the structure sheds light on the reasons why states may be motivated to infringe on constitutional rights and whether such efforts can succeed in practice. SB 8 is thus a useful test case to examine the structure and its potential for reuse. For purposes of this analysis, this Note will examine SB 8 through a pre-Dobbs lens, focusing on the period when the statute’s prohibition was unconstitutional.
Part I examines the statute’s language, focusing on the provisions designed to evade constitutional review, thereby presenting SB 8’s abstract “citizen deputy model” as a structure that other states might repurpose to infringe on rights. Part II examines the current doctrinal posture of SB 8’s three “shields”—standing, sovereign immunity, and the state action doctrine—identifying questions the Court has answered thus far and flagging those that remain outstanding. Notably, Part II analyzes a key doctrinal development produced by SB 8 litigation in the merits decision Whole Woman’s Health II. Part III examines the methods by which parties whose free exercise of rights are burdened by the structure would mount a challenge to test its constitutionality on the merits. Specifically, Part III will examine the selection of the proper plaintiffs and defendants and apply the three “shields” as they currently stand to those potential plaintiffs and defendants, using SB 8 as a test case for the analysis. Part IV returns to the doctrinal questions the Court has not yet answered and proposes a rule therefor. Part IV also examines the possible broader implications of the citizen deputy structure and whether such implications should inform the Court’s thinking while resolving these doctrinal questions.
This abstract has been taken from the author's introduction.