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Texas Senate Bill 8, which practically bars abortions in the state, has an unusual* provision whereby civil claims against abortion providers can be asserted by private plaintiffs not involved in or directly impacted by the abortion. In fact, the state is barred from enforcing the law directly.

This has had the effect of evading, or at least delaying, federal judicial review by (apparently) creating a situation where abortion providers do not have standing to challenge the constitutionality of the law until a suit is brought against them, and abortion seekers do not have standing at all.

Opponents of abortion restrictions contend that that effect was the primary purpose of the provision. Would supporters of the law agree with that characterization? Or have they put forward alternative arguments for why private civil actions, rather than direct enforcement, is a reasonable policy in this case?

*: this article says:

“It’s a very unique law and it’s a very clever law,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston.

The relevant part of the law is:

Sec. 171.207. LIMITATIONS ON PUBLIC ENFORCEMENT. (a) Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.

Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a) Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who: [List of elective abortion related activities]

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  • Comments deleted. Please don't use comments to answer the question. If you would like to answer, please write a real answer that conforms to our quality standards.
    – CDJB
    Sep 3 at 18:21
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+50

I haven't come across supporters of the bill disclaiming the charge that the private enforcement clause is intended to evade immediate judicial review - the sponsor of the bill, Senator Bryan Hughes, is very open about having worked with attorney Jonathan F. Mitchell to write the bill, saying "I get to be the author of the bill, my name is on it, but we relied on his work ... We’re thankful for all the help."

In 2018, Mitchell published an article entitled The Writ-of-Erasure Fallacy in the Virginia Law Review. In this article, he explores ways in which state legislatures can "induce compliance" when enacting a law "certain to be challenged in court" - he gives examples of "a campaign-finance law, a gun-control measure, a civil-rights act, a child-labor law in the 1920s, an abortion regulation, a prohibition on virtual child pornography, or a state-law prohibition on sanctuary cities". He writes:

The legislature can also induce compliance with its statutes by providing for private enforcement through civil lawsuits and qui tam relator actions. These mechanisms are especially powerful because they enable private litigants to enforce a statute even after a federal district court has enjoined the executive from enforcing it.

Mitchell describes the fact that this allows private enforcement of a statute to continue "unless and until the Supreme Court of the United States declares a statute unconstitutional". He then goes on to describe two more obstacles to the defendant (in this particular case, this could be an abortion clinic):

A defendant has no entitlement to attorneys' fees when he asserts his constitutional rights defensively in a private enforcement action, and the need to foot one’s own legal bills may induce statutory compliance even for those who expect to prevail on their constitutional objections. In addition, the plaintiff enforcing the statute will have the prerogative to choose his forum, so he will sue in the court that is most likely to uphold and enforce the statute.

Hughes gave another argument for relying on public enforcement in an interview with WFAA - the fact that some district attorneys in Texas have said that they will not enforce any heartbeat bill. Allowing prosecutions to be brought by private citizens denies these attorneys the opportunity to frustrate the bill in this way.

Jason Whitely: Senator, there is a clause in here that allows anyone to sue an abortion provider who breaks the new law, they don't even have to live in Texas. I believe that you personally put this in the bill, so the idea is that the public should enforce this law, but to me that seems really ripe for abuse considering the GOP is really trying to clamp down on frivolous lawsuits?

Hughes: So Jason, I'll say two things about that. One is; we know that many district attorneys around the country, even in Texas; Dallas County, Fort Bend County, a number of our urban counties, where the district attorney has said publically: "You can pass a heartbeat bill if you want to, but I will not enforce it". Other states have had the same problem, and so that's a concern, when an elected official says "I'm not going to enforce the law". So that's one reason we like public civil enforcement.

And this is ground that's been ploughed before - under current Texas law under Medicaid fraud, for example. Any person who discovers Medicaid fraud can bring a civil case to bring that forward. The Chick-fil-A law, Senate Bill 1978 from last session about your religious freedom, that also allowed any person to bring a civil action. So it's not a new concept in Texas law, and if elected officials won't follow the law, we'll empower the people of Texas to do it, and we think it makes sense.

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    I actually read somewhere else that some DAs saying they would not enforce such a law was a consideration, but the statement I found didn't come from a proponent of the law, so it wasn't exactly fitting the Q. Nice dig on that one, finding Hughes saying it.
    – Fizz
    Sep 7 at 5:09
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    Somewhat O/T but may be interesting: they seemingly have a similar issue with the mask mandate ban, which some local DAs don't seem willing to enforce.
    – Fizz
    Sep 7 at 23:28
  • That one may be more difficult to overcome like this, i.e. civil lawsuits, because like in the chick-fil-A law lawsuit attempt... there's govermental immunity in the way of civil lawsuits in those cases, but it's absent in the abortion case, unless the clinics are state-run (which by and large, I think they're not).
    – Fizz
    Sep 7 at 23:28
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I don't think the supporters of the law would necessarily disagree that the purpose was to limit abortions. It also remains to be seen if there's no legal way to challenge the law. To clear a few things up

  1. The law allows private citizens to file lawsuits against abortionists who abort a fetus with a heartbeat (~6 weeks of gestation) (laws with direct enforcement have been blocked repeatedly by courts)
  2. The law cannot be enforced by the State of Texas itself

The SCOTUS ruling has been oversimplified to say that they ruled against abortion, or that the bill was legal, but that's not what happened here. The moving parts are

  1. Forces against the law waited about two months to file their lawsuit. Gov Abbott signed the bill on May 19 and the suit was filed on Jul 13. The law was set to take effect on Sept 1. This suit named several folks who would normally be charged with enforcement of the law, even though they are not actually allowed to enforce said law.

    Hearron said his organization hopes to overcome that obstacle in the suit against the state law by naming state officials as defendants. Eight state officials were sued in the new lawsuit, including Attorney General Ken Paxton, Texas Board of Nursing Executive Director Katherine A. Thomas, and Texas Health and Human Services Commission Executive Commissioner Cecile Erwin Young.

    Plaintiffs’ attorneys said they named officials who are not charged with directly enforcing Senate Bill 8 but still have authority to enforce related laws.

  2. A motion to dismiss on Sovereign Immunity was filed. The Federal judge ruled against a motion to dismiss.

  3. The irony of the law opponent's victory was it left them in a lurch legally. The case would continue, but they needed a judicial stay, not a victory against a motion to dismiss. The defendants promptly appealed to the 5th Circuit. Law opponents had to argue against the ruling in their favor from the Texas Federal judge, in an attempt to get the case moved back there. The 5th Circuit ruled against issuing a stay.

  4. The emergency appeal to SCOTUS was for a stay in a case where there was a question about proper defendants and no actual case to rule on merits. The SCOTUS ruling simply refused to issue a stay (quote from pg 24)

    Applicants assert that, without an injunction, they will face a litany of harms: they will be subject to endless lawsuits, they will be too afraid to perform abortions in the State, and abortions would be “decimated.” Appl. 6. But (1) the requested injunctive relief will not prevent the harms they fear, (2) the claimed emergency is largely one of Applicants’ own making, and (3) the injunction they seek is overbroad and so vague as to be impossible to implement in any meaningful manner. Moreover, Applicants can continue to litigate their challenge below, so injunctive relief is not necessary to aid the Court’s jurisdiction.

So we don't know if the bill will stand up in court yet, only that the attempts to get an injunction failed. And that's the real crux here

TL;DR Why pass this?

Or have they put forward alternative arguments for why private civil actions, rather than direct enforcement, is a reasonable policy in this case?

The goal wasn't leaving pro-abortion folks with no defendants to sue. The goal was to make a law that can potentially survive the precedents set by Roe v Wade and Planned Parenthood v Casey (that second one is where the "undue burden" standard mentioned below comes from)

Nor are these legal questions anywhere near as simple as the abortion providers contend. The Texas Heartbeat Act is an intricate statute whose meaning the Texas courts, and ultimately the Texas Supreme Court, are entitled to determine. The abortion providers’ claim that the Act is inconsistent with Supreme Court precedent ignores the fact that the Act itself explicitly confers on abortion providers an “affirmative defense to liability” in the event they demonstrate that a lawsuit brought under the Act “impose[s] an undue burden.” Further, it is incontestable that some of the Act’s applications (e.g., to non-therapeutic post-viability abortions, to take an easy example) are permissible under current Supreme Court precedent. The Act also has elaborate severability provisions.

In other words, Roe and Casey prevent states from taking enforcement action to restrict abortion. They say nothing about enabling private citizens to litigate abortion providers. That they defeated round one is merely an opening act. The main event is if this runs afoul of the Casey "undue burden". It still remains to be seen if courts (or Congress) will allow it to stand.

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    This is an interesting review of the case against the law, but it does not seem to answer the question. The question is what reasons were given for the very unusual limitations on the law that preclude the usual people from enforcing it, and provide for civil cases with no obvious loss on the side of those bringing the case.
    – Dave
    Sep 3 at 22:09
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    Yeah, this is definitely informative stuff, and thanks for it, but my original question was what arguments have been put forth to support a private right of action.
    – Sneftel
    Sep 3 at 23:26
  • I thought I had been clear enough in my answer, but I guess I was too subtle. I've made the focused answer more obvious.
    – Machavity
    Sep 3 at 23:57
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    It will be interesting to see what happens if the defense offered against litigation is that private citizens don't have any standing to intervene via lawsuit, as they are not directly impacted by the abortion in any way. Sep 7 at 15:03

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