Tuesday, September 7, 2021

SOME THOUGHTS ON THE TEXAS HEARTBEAT ACT (TEXAS SENATE BILL EIGHT).

I.  INTRODUCTION.

This posting addresses some of the issues surrounding the Texas Heartbeat Act, also known as Texas Senate Bill 8 (SB8), and the Supreme Court decision in Whole Woman’s Health v. Jackson that allowed the law to go into effect a few days ago.  It also links to two excellent articles regarding the statute and the case.

The first article is a blog posting at The Volokh Conspiracy by libertarian law professor Ilya Somin regarding some of the legal issues raised by SB8.  It is available here: https://reason.com/volokh/2021/09/02/thoughts-on-the-supreme-courts-texas-abortion-ruling-and-how-to-prevent-it-from-setting-a-dangerous-precedent/?post_type=volokh-post&utm_medium=email.  I agree with virtually all of Somin’s post, though I think there are some other options for attacking the law that he does not consider and that I address below.

The second article is by David Frum, a former speechwriter for President George W. Bush, and was published in The Atlantic.  It is available here: https://www.theatlantic.com/ideas/archive/2021/09/texas-republicans-abortion-ban-backfire/619956/?fbclid=IwAR0_YD0tKVHHG4cGrvRPn4ztHzpnHoN6yCEWFL8EjaDq-FljG-Tj7TAdkjk.  Frum’s piece is a good summary of the political ramifications of overturning Roe.  Big picture, Frum hypothesizes that if the Supreme Court eliminates the constitutional right to abortion, a large number of centrist women will shift from tending to vote Republican to tending to vote Democratic, which could create serious political challenges for Republicans moving forward.  Frum of course acknowledges that such a shift may not happen, and that this would signal that the country is more pro-life than abortion rights advocates have long believed.  But Frum’s guess is that the Republicans will pay a political price if Roe goes.  Frum’s piece is pretty straightforward, so I’m not going to say anything more about it.  Instead, my focus here is on the legal issues, such as those raised by Somin in his blog entry.

Let me also add preliminarily that there has been much speculation regarding what the Supreme Court ruling in Jackson suggests about the future of Roe.  I think it is fair to say that the current case doesn’t bode well for the future of the constitutional right to abortion.  But Jackson is at a preliminary procedural stage.  Thus, we should exercise great caution in speculating about the meaning of the Supreme Court’s decision to let SB8 go into effect.  Perhaps in a future post I will offer some thoughts on Roe’s long-term prognosis.  But in the rest of this posting, I’m going to focus on the special features of SB8 and the legal issues raised by those features.

II.  THE TEXAS HEARTBEAT ACT AND THE PROBLEMS IT RAISES.

SB8 bars all abortions after a heartbeat is detected (which is generally around six-weeks), except those that are medically necessary.  It also utilizes an enforcement mechanism previously unknown to the law of abortion: Any private person may bring a civil lawsuit against any person who (1) performs an abortion, or (2) acts in such a way that aids or abets the performance of an abortion.  Part (2) is the source of hypotheticals you’ve likely heard in the media.  For example, SB8 can be read to permit a lawsuit against an Uber driver who brings a woman to an abortion clinic.  And it permits a suit against a person who provides financial assistance to a woman so she can travel to obtain an abortion.

Under SB8, if the plaintiff succeeds in its lawsuit, the plaintiff is entitled to, among other things, statutory damages of $10,000 for each abortion that the defendant either performed or aided and abetted.  In this context, “statutory damages” means damages that do not flow from an injury to the plaintiff and are instead a type of fine or penalty.  Moreover, SB8 expressly bars public enforcement of the law.  It provides that the statute “shall be enforced exclusively through the private civil action” described in the act.

The primary reason SB8 contains only a private enforcement mechanism is to make it more difficult for the law to be challenged in court as unconstitutional.  Indeed, some commentators have suggested that it may be impossible to preemptively obtain an injunction from a court barring enforcement of SB8 (though at least one state court did so on Friday night after I started writing this post; see here: https://www.cnn.com/2021/09/03/politics/texas-right-to-life-planned-parenthood-lawsuit/index.html).  That is because injunctions generally enjoin specific people from enforcing an unconstitutional law.  But with SB8, no government official is permitted to enforce the statute.  And according to Professor Somin, “it is not possible to identify a specific private party who plans to enforce [SB8], either.”  The Supreme Court majority in Jackson specifically relied on this procedural complexity in refusing to intervene in the case until litigation in the lower courts is complete.  (Note further that Eugene Volokh put up a posting at The Volokh Conspiracy explaining that, as a general matter, when a statute creates a potentially unconstitutional cause of action to be enforced in private litigation, the constitutionality of the cause of action can only be litigated as a defense after a defendant is sued under the law.  Hypothetical defendants cannot preemptively sue to block the law.  See here: https://reason.com/volokh/2021/09/03/challenging-unconstitutional-civil-liability-schemes-as-to-abortion-speech-guns-etc/.)

Somin details how SB8 could lead to serious abuse, undermining constitutional rights generally.  If all it takes to substantially nullify a constitutional right is a shift in statutory enforcement powers from public officials to private citizens, it is not hard to imagine that additional states will pass laws like SB8 that undermine or critically weaken other rights in the Constitution, including the right to keep and bear arms protected by the Second Amendment and the rights to free speech and freedom of religion protected by the First Amendment.  (Somin makes this point in his piece.  So does Priscilla Smith at Balkinization here: https://balkin.blogspot.com/2021/09/private-enforcement-mechanisms-and-you.html.)

Note that Somin (correctly) explains that “the problem here is NOT simply that Texas is using private lawsuits as an enforcement mechanism.  Many laws—including many supported by the political left—rely heavily on enforcement by private litigants.  That is true of numerous environmental regulations, consumer protection laws, and land-use restrictions.”  Rather, the problem is that SB8 creates a remedial mechanism that may substantially evade judicial review.

To be sure, abortion providers can defend themselves in court after they are sued.  But what are they supposed to do prior to a case against them being filed?  The mere threat of lawsuits that may never be commenced has already significantly limited the activities of clinics and others in Texas.  In short, the real power of SB8 appears to be in (a) the chilling effect that POSSIBLE lawsuits have on the exercise of the constitutional right to abortion currently protected by Roe, rather than in (b) the impacts that will result from lawsuits actually filed under the law.

III.  STRATEGIES TO CHALLENGE THE TEXAS HEARTBEAT ACT.

Professor Somin cites to a draft law review article by two other professors that analyzes many of the procedural issues raised by SB8.  I read part of the article and skimmed the rest.  The authors conclude that SB8 likely will not serve its purpose in the long run.  One critical weakness, they contend, is that under current case law, plaintiffs likely lack standing to bring a suit in federal court to enforce SB8, and may even lack standing under Texas state law.  A plaintiff suing under SB8 has not actually been injured.  And the general rule is, if there has been no injury, then the plaintiff has no standing to file a lawsuit.

While the argument that standing doesn’t exist in federal court is reasonably strong, there is a good chance that a plaintiff can bring a civil action under SB8 in Texas state court.  And I’m not convinced plaintiffs lack standing in federal court since there clearly is an injury (to the fetus), and a plaintiff would be suing to recover for that injury.  Therefore, what can be done to challenge SB8 – or any comparable law – as unconstitutional if no pro-life person brings suit under the law?  Set forth below are some options.

Two things before I set out the options.  First, the non-lawyers reading this may struggle with the material below because I use some technical legal terminology.  But time constraints prevent me from fully explaining everything in this posting.  If you have questions, please ask them in the comments, and I will respond to as many as I can.  Second, some of my options below may have fatal legal problems that I am unaware of because I haven’t conducted the type of research that I would if this were a law review article rather than a Facebook posting.

OPTION 1.

A pro-CHOICE person immediately sues an abortion clinic in Texas state court for $10,000 and for an injunction seeking to bar the clinic from performing further abortions after a fetal heartbeat can be detected.  The clinic admits in its answer (a) that it recently performed an abortion in violation of SB8, and/or (b) that it is planning to perform an abortion that violates SB8, but that the clinic suspended the procedure until the litigation is resolved.

This would result in defenders of abortion rights being on both sides of the lawsuit.  Perhaps someone who is pro-life would attempt to intervene, or seek to file a friend-of-the-court brief.  The judge might even appoint someone to advocate in favor of SB8 who the judge is certain supports the law.  In any event, after briefing on the issue, the judge will strike down as unconstitutional those portions of SB8 that are inconsistent with Roe and its progeny.

The first benefit of Option 1 is that it can get litigation started immediately – litigation that will likely result in an injunction that bars enforcement of the unconstitutional portions of SB8.  As I stated above, there is no question that a defendant abortion provider can challenge the constitutionality of SB8.  (Indeed, that is the primary way to challenge the constitutionality of a private cause of action.)  The second benefit is that the court would likely be able to quickly issue a ruling because of the relatively simple nature of the case. 

Note further that there are numerous pro-choice individuals who would be willing to sue – and if they are successful, simply donate the money to the clinic they just sued or some other pro-choice institution. . . .   One might respond that if no pro-life party joins the case, then having abortion rights parties on both sides of the lawsuit would constitute “sham” or “fictitious” litigation, or otherwise constitute an “abuse of access to court.”  Based on some preliminary research I conducted, that is a genuine danger.  But I think the better view is that such a lawsuit would NOT be a sham or an abuse of process (assuming one could prove bad faith), especially because SB8’s right to sue is so broad.  Thus, pro-life defenders of SB8 would be taking an awful risk if they chose not to intervene in the case in some form.  And pro-choice individuals in Texas should be willing to take their chances in suing a clinic in the hopes of losing.

There is at least one other important weakness to Option 1: It probably would not result in an injunction that applies beyond the parties to the case (though it would be valuable precedent).  Thus, other potential plaintiffs could still bring suit under SB8 down the line, leaving most of the chilling effect in place.  That leads me to Option 2.

OPTION 2.

A pro-choice person immediately sues an abortion clinic in Texas state court for $10,000 and for an injunction seeking to bar the clinic from performing further abortions after a fetal heartbeat can be detected.  The plaintiff then seeks to certify a plaintiff class of all persons in Texas since each such person has a right to the injunction and a right to a share of the $10,000.  The defendant clinic concedes class certification (and otherwise answers as noted under Option 1).  The judge then certifies the class.  After the court determines that certain portions of SB8 are unconstitutional because they are inconsistent with Roe and its progeny, that determination would be binding on every person in Texas as a member of the class.

Note that because injunctive relief is being sought, the plaintiff could request that the court certify a mandatory non-opt out class under Federal Rule of Civil Procedure 23(b)(2) (or the Texas equivalent in state court).  That way other people in Texas could not remove themselves from the class and sue separately at a later time.  (For the non-lawyers, most class actions are filed under 23(b)(3), which permits members of the class to opt out and sue individually.  That is now allowed under 23(b)(2).)  

If successful, Option 2 would result in an injunction that bars EVERY person in Texas from enforcing the unconstitutional portions of SB8 against the defendant in the case.

Let me note two concerns with Option 2.  First, because of the class certification issues, this approach would likely take longer than Option 1.  Second, the ruling might not protect any party who is not a defendant.  Normally, under the law of issue preclusion (collateral estoppel), the plaintiffs would be barred from suing anyone else under SB8 once they lose in the initial case.  However, SB8 purports to block the application of issue preclusion.  While issue preclusion is a judge-made doctrine, I’m not sure it can be overridden by statute.  And if it cannot, that would pretty much be the end of SB8.  But my hunch is that the legislature CAN override issue preclusion law.  That leads me to Option 3.

OPTION 3. 

Option 3 is identical to Option 2, but with one change: In addition to seeking certification of a plaintiff class, the plaintiff further requests that the court certify a DEFENDANT class of all persons in Texas who perform or might otherwise aid or abet the performance of an abortion.  Rule 23 allows for defendant classes.  And such classes are particularly appropriate in the context of injunctive relief, which is at issue in my proposed lawsuit.  Moreover, given the extremely broad nature of SB8 – anyone can serve as a plaintiff and anyone who aids or abets an abortion can be a defendant – certifying both plaintiff and defendant classes would be a particularly logical way to deal with legal issues created by SB8.

If this strategy works, then every potential plaintiff would be barred from suing every potential defendant to enforce the unconstitutional portions of SB8.

CONCLUSION

I suspect that Option 3 will not work, but that Options 1 and 2 will work.  Thus, the best way to handle SB8 would be for abortion RIGHTS advocates to file class actions (and/or regular lawsuits) against every abortion provider in Texas in the hopes that, upon losing those lawsuits, the abortion providers will be shielded from further litigation under SB8.  Even if class certification fails, individual lawsuits will bring greater legal clarity.  Once a large number of courts have ruled that parts of SB8 are unconstitutional, it will be easier to sanction plaintiffs who file lawsuits under the law.  (A provision of the SB8 arguably tries to block such sanctions, but I don’t think it is written well enough to foreclose sanctions for frivolous litigation.)

One final point.  While it is not true in the American legal system that EVERY right has a remedy, it is the case that VIRTUALLY every right has a remedy.  Moreover, the rules of civil procedure are intended to be construed broadly to permit disputes to be resolved on the substantive merits.  And courts have inherent powers to craft remedies, particularly in the context of constitutional violations.  Indeed, the judicial development of remedies has been a part of Anglo-American law from the beginning.  Accordingly, it would be entirely appropriate for judges to design new remedies – or apply old remedies such as class actions in new ways – to block enforcement of the unconstitutional portions of SB8, a law that is expressly crafted to make it more difficult for parties to assert their constitutional rights using traditional procedures.  Remedial creativity is a feature of our legal system, not a bug.  And new and extraordinary violations of constitutional rights warrant new and extraordinary judicial remedies.