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.
