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Thursday, May 20, 2021
Procedural morass of the Texas Fetal Heartbeat Law (Updated)
Texas Governor Greg Abbott yesterday signed SB 8, a "fetal heartbeat" law that bans abortions as early as six weeks. What makes this different than the spate of similar laws from red states is that the law is not publicly enforceable. Instead, it creates a cause of action for "any person" to bring a civil action against any person who performs or induces an abortion or who aides or abets the performance or inducement of an abortion, the latter covering paying, insuring, and reimbursing the costs of an abortion, as well as (I presume) publicizing the availability or option of abortion. Remedies include injunctions, statutory damages of not less than $ 10,000 per abortion, and attorney's fees.
This is a mess, although picking it apart will take work.
AJosh Blackman is correct about two things.
First, the ordinary route to challenging abortion restrictions--Planned Parenthood or other doctors and providers of reproductive-health services brings a pre-enforcement § 1983/Ex Parte Young action against the governor, AG, Secretary of Health and Human Services, or other public official for a declaratory judgment and injunction prohibiting enforcement--is not available. Because no government officials are responsible for enforcing he law, there is no "responsible executive officer" to sue or to enjoin from enforcing the law. Courts may frame this a number of ways--lack of standing (because the officer does not enforce the law, the injury is not fairly traceable to the officer or redressable by an injunction), sovereign immunity (the elements of the EPY exception are not satisfied), or (my preferred way) that official is not violating the plaintiff's substantive rights. The legislature is immune from suit for enacting the law. And, in any event, the existence of the law (the thing for which the legislature is responsible) does not violate anyone's rights.
Second, the enforcement actions will stay in state court, because any federal defense that the law is invalid is not a basis for removal. One workaround on this would be for providers to reincorporate and/or change their principal places of business out of Texas. That would create diversity jurisdiction and allow for removal on that basis. And once the case is in federal court, the defendant should be able to have it dismissed for lack of standing. There could be fun games with the amount-in-controversy requirement. Attorney's fees are generally not included in calculating the amount in controversy, so that remedy is excluded from the calculation. Would a plaintiff limit the claim to recovering the statutory minimum and only for seven abortions to keep it under the amount? What is the "cost" of a prevented abortion procedure? Alternatively, would we see plaintiffs coming from outside Texas to bring these actions? "Oh, Planned Parenthood is incorporated in New York, let's find a New Yorker to bring this suit."
Alternatively, this is where § 1443 would come in handy, as it appears this law will deny defendants the ability to assert certain rights (see below). But that provision is limited to state laws that deny federal equal rights, not to laws denying non-equality constitutional rights such as due process.
B.
The law attempts to limit or deny defendants the right to assert the constitutional rights of women to challenge the validity of the underlying abortion fetal-heartbeat ban as an affirmative defense. This is framed as a limit on third-party standing and as a statutory provision codifying the requirements of the constitutional test. It also removes the affirmative defense if Roe or Casey is overruled, even after the challenged conduct.
This demonstrates the problem with using the language of third-party standing to describe constitutional challenges to laws regulating and criminalizing the conduct of the providers bringing these actions. It is not third-party standing but first-party standing, because the challenged law regulates the party to the action. These cases do not involve a law prohibiting conduct by 18-year-old men and a lawsuit brought by the bar owner injured by the loss of business. These cases involve laws prohibiting conduct by and imposing punishments on reproductive-health-services providers. Planned Parenthood is asserting first-person standing to raise its own rights not to be held liable or sanctioned under a constitutionally invalid law. True, the law is invalid because it violates someone else's constitutional rights. But the law still targets the party to the action, not the non-party rights-holder. This looks more like United States v. Bond, in which the Court held that a defendant can raise federalism and separation-of-powers defects in the law under which she is prosecuted, without viewing it as vicarious assertion of state interests.
I came up with the following analogy: A state wants to silence a critical newspaper. It enacts a statute prohibiting "mean and critical speech" and creates a cause of action to sue for damages and attorney's fees the companies that provide ink and paper to the newspaper that publishes mean-and-critical speech. I believe a court would allow the defendants to argue that the law is invalid because it prohibits protected speech, even if the speech regulated (thus the constitutional right violated) belongs to the newspaper and not the ink or paper companies. The companies' conduct is regulated by the law and thus they must be able to defend themselves.
Is the civil action under SB8 materially different from that case? In both, someone is being made liable under an invalid law. Maybe the difference is (or should be) between pre-enforcement and enforcement actions. We might limit who can bring pre-enforcement challenges and what rights can be asserted in pre-enforcement challenges. But those limitations should not apply when the invalid law is enforced to impose liability on someone; that defending party must be able to raise the full range of defects in the law to avoid liability and damages.
To the extent the statute purports to limit defendants' ability to challenge the invalidity of the underlying ban, does that violate procedural due process?
Again, this gets litigated in Texas state court. Will state courts faithfully apply SCOTUS precedent to this zombie law and dismiss the enforcement actions? The assumption is that they will not, contra the assumption of parity that guides the study of fed courts. And SCOTUS could review the underlying defenses that the law is invalid. Would SCOTUS touch this? Would a majority object to the temerity of either the state legislature for enacting this or for the state courts in disregarding current precedent?
C.
An Erie problem, because this disaster has everything. Section 4 provides that an attorney or organization who unsuccessfully challenges the validity of any state law regulating or restricting abortion or funding of abortion or represents a plaintiff in an unsuccessful challenge, in state or federal court, is liable for the defendant's attorney's fees.
It is pretty obvious this cannot apply in federal court. An Act of Congress controls the question of attorney's fees in constitutional actions in federal court--§ 1988, which has been interpreted to make fees virtually automatic for prevailing plaintiffs but recoverable by prevailing defendants only if the case was frivolous and even then relatively rarely. So there is no room for the state law, which directly conflicts with § 1988, to operate.
Section 4 circumvents problem by providing a distinct cause of action to recover attorney's fees within three years of the end of the prior litigation. So a plaintiff who prevails in federal court could bring a new lawsuit in state court seeking fees. Does that create a converse-Erie problem?
D
This is a good, if unfortunate, lesson that most people in law and politics do not take procedural arguments seriously, but use them as cover for substantive preferences. The conservative legal project for 30+ years has been limiting standing and causes of action in environmental- and consumer-protection cases, including using Article III to defeat legislative efforts to enable private enforcement. I guess those limitations do not apply in the areas some people care about.
E (Update)
This is becoming a Fed Courts exam.
A reader proposes that the private state-court litigation under invalid state law equals state action under Shelley v. Kramer and New York Times v. Sullivan. So perhaps Planned Parenthood can bring a § 1983 action against the Texas plaintiff once the lawsuit is filed (but perhaps before service), seeking to enjoin the private action because the underlying law is invalid. I do not think it works, but it is worth exploring.
I describe this situation as state action without a state actor (or a person acting under color of law). There is state action in the creation of state law (statutory or common law) and its enforcement in state courts, thus the Constitution plays a role as a defense in the private litigation. The Shelleys could argue that equal protection means they must prevail in the state-court action to divest them of title to the property, The Times could argue that the First Amendment means it must prevail in the state-court defamation action, and Planned Parenthood could argue that due process protects it from liability for performing or facilitating abortions.
But it requires another step to say that Kramer (the neighboring property owner), Sullivan, or Texas anti-choice advocate Billy Bob Smith is a state actor (or acts under color of state law) and thus is subject to a § 1983 suit for filing those civil actions. That generally does not happen in these state tort cases with constitutional undertones. And rightly so. A private person who avails himself of state law and state processes, even if constitutionally invalid, does not become a state actor and should not become a state actor. Think of the major constitutional decisions involving state tort or other causes of action; all arose as defenses in the civil action rather than by suing the would-be state plaintiff in federal court. Lugar v. Edmondson Oil represents the exception, where the Court found state action because the use of state law (ex parte pre-judgment attachment) required coordination with the clerk of court and the sheriff, so it was more than availing oneself of state law. (Lugar does the state-action work in the series of post-Janus actions to claw back previously paid agency fees). I happen to believe Lugar is wrong. If we are stuck with it, however, it should not extend to the situation of filing a lawsuit under presumptively valid state law.
On the other hand, let me try a different state-action argument that might work. Texas enacted a new law banning some conduct, then delegated to private individuals lacking any connection to the conduct at issue the exclusive power to enforce that law while declaiming all governmental enforcement. And it declaimed government enforcement specifically to prevent pre-enforcement challenges. Perhaps enforcing state law is a "traditional-and-exclusive government function," delegation of which creates a state actor. This is not to say that every private attorney general acts under color. But perhaps it is different if the government turns all enforcement to the private AG. That argument is at least non-frivolous.
If Planned Parenthood could get past that state-action problem, another hurdle awaits--Younger. In the ordinary case, Planned Parenthood would bring a pre-enforcement action in federal court against the responsible executive official to enjoin enforcement. But it has a time window in which to act--if the state initiated an action to enforce the abortion ban, Younger prohibits Planned Parenthood from running to federal court to enjoin that pending enforcement action. Under HB8, however, Planned Parenthood cannot sue the private plaintiff because it has no idea who the private plaintiff will be--it could be anyone. So it must await for Billy Bob to identify himself by filing the lawsuit, at which point Younger arguably kicks in.
But Younger is uncertain in three respects. First, under Sprint, Younger bars federal actions in deference to three classes of state litigation--criminal cases, civil enforcement actions brought by the state, and ordinary civil litigation involving court orders that are uniquely central to the state court's authority (e.g., contempt and pre-judgment attachment). Billy Bob's lawsuit does not fall within any of those three, unless the court extends the second category to include civil enforcement by a private attorney general. Second, if Younger applies to this type of case, it would test Younger's "flagrantly and patently violative" exception, because it is hard to imagine a law more flagrantly and patently violative under Roe/Casey than a ban on abortions at six weeks, before many women know they are pregnant. Finally and alternatively, this might fit the bad-faith exception, because the plaintiff could not win a valid (under current judicial precedent) judgment. A district court held earlier this year that the exception applied to a new action to sanction Masterpiece Cakeshop for refusing to back a cake for a trans woman following the SCOTUS decision. It is even more obvious that a fetal-heartbeat law is invalid under Roe/Casey and that any judgment would be invalid.
Posted by Howard Wasserman on May 20, 2021 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink
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