SB8 lawsuit

I am in the early days of a co-authored piece on Texas' fetal-heartbeat law, including why pre-enforcement federal litigation may be impossible. Complicating that argument, reproductive-health providers in Texas on Tuesday filed suit in federal court. Much of this will become part of the article. But some analysis after the jump.

A

The law's main feature is the prohibition on public enforcement of the law in favor of reliance on private enforcement through actions (by any person) for statutory damages, injunctive relief, and attorney's fees. That made pre-enforcement litigation impossible, because there was no responsible executive officer to sue to enjoin enforcement. This left them in state court and having to raise constitutional issues as a defense. These plaintiffs tried different targets.

    • State court judges (through a defendant class action), who would rule on the cases. I do not think this works because the judges have not done anything or threatened to do anything. They wait for someone to file suit, then rule on it, bound by oath and the Supremacy Clause to adhere to federal law. That is, the "enforce" the law, but only in the sense that someone else takes the executive action of initiating litigation. Plus, I think parity--the assumption that state judges follow federal law and are equal to federal courts in protecting federal rights--weighs against a federal court enjoining state judges before state judges have had an opportunity to do anything.

    • Clerks of court (through a defendant class action), who would accept the filings. This does not work because the clerks perform a ministerial function--accepting the filing--that does not alone cause any injury or constitutional violation. The mere filing of a lawsuit does not violate anyone's rights. Otherwise, a plaintiff could sue the clerk as a joint tortfeasor in an abuse-of-process claim.

    • Mark Dickson, the head of East Texas Right to Life. They allege he acts under color because he has been "deputized" to bring lawsuits enforcing SB8. This is the traditional-public-function theory I argued could work--by surrendering all public enforcement in favor of private litigation, private plaintiffs perform the traditional public function of enforcing the law. This does not place all private attorneys general under color; but the complete surrender of enforcement authority goes one step further. The problem is that it is not clear that Dickson (or anyone else) will bring or plans to bring a lawsuit; he (and everyone else) is empowered to do so, but we do not know anything beyond that. So there may be an imminence problem. The complaint also alleges that Dickson pushed for this law; basing a state action finding on that conduct raises serious First Amendment problems.

    • The heads of the state medical board and board of nursing. This one is cute. The argument is that the boards are responsible for enforcing laws governing medical and nursing practice through administrative and licensing proceedings. Those proceedings can be instituted against a doctor or nurse who violates any state laws related to medical care--including the provisions of SB8. In other words, licensed professionals must adhere to all laws and regulations governing the practice of medicine, including SB8, and the boards can institute disciplinary proceedings for failing to follow any laws or regulations, including SB8.

        This offers a partial solution for some plaintiffs, but only goes so far. Some plaintiffs are not providers, but non-profits who provide information, guidance, and funding to women seeking abortions and are worried about being sued under the broad aiding-and-abetting provisions (which would likely violate their First Amendment rights). But they are not subject to regulation by these Boards and so they cannot bring claims against the board.

        Also, note the scope of any injunction that issued. The Boards would be enjoined from bringing licensure or other actions against providers for violating the fetal-heartbeat law. But that injunction would not protect other plaintiffs from private suit, nor would it stop other actors (such as the many deputized individuals) from bringing lawsuits nor would it stop future use of anything else in the statute.

B

SB8 includes a provision allowing for recovery of attorney's fees to any defendant who prevails in a challenge to the validity of any abortion restriction or regulation. This is intended to deter plaintiffs from filing suit. It cannot apply in federal court, where § 1988 (an Act of Congress) controls and allows defendants to recover fees only if the claim is frivolous, unreasonable, or without foundation. But SB8 creates a state law cause of action to recover fees. Plaintiffs argue that § 1988 preempts state law, because it conflicts and would frustrate congressional policy (which was to incentivize § 1983 suits without the chill from a true loser-pays system). I think the preemption argument is a good one, but I am not sure it is proper in this case because we do not know who would be responsible for bringing that action and thus who could be enjoined. Preemption could be a defense if someone attempts to bring a state-law claim for attorney's fees in the future, but I do not think it is up for pre-enforcement review because we again do not know the enforcer.

C

The complaint generally complains about the unfavorable procedures built into SB8--anyone can sue anyone involved or advocating for abortions, statewide venue, attorney's fees and high statutory damages, providers cannot raise the constitutional rights of pregnant women as a defense; the complaint describes the enforcement proceedings as "rigged."

The complaint attempts to constitutionalize certain legislative judgments about the structure and organization of the judiciary, such as venue and fee-shifting, that are ordinarily not subject to constitutional limitations. As a due process argument, it fails. But they frame it as an equal-protection argument--these unique procedures applied to one category of favored claim against disfavored defendants for a disfavored activity; that could work. The question is what level of scrutiny would apply, which doubles back to whether the right to choose is a fundamental right. If it is fundamental, then strict scrutiny would apply; otherwise, it would be rational basis.

The providers do have a due process argument against the provision preventing providers from raising the constitutional rights of women as a defense. Several scholars have described a "valid-rule due process" defense--a law must be valid to be enforced against anyone and anyone subject to enforcement of a law has the right to raise any constitutional defect in that law, even if involves someone else's rights. While abortion providers are described as asserting third-party standing to enforce their patients' rights, it looks more like first-party standing when the providers are the targets of the law.

But these arguments remain defenses that can be raised in the state-court enforcement action and nothing indicates that state judges will not follow federal law in adjudicating them. There is still no basis for a pre-enforcement challenge.

 

SB8, and the attempts to frame litigation to challenge it, illustrates the procedural framework within which judicial review operates. Federal courts do not issue free-standing pronouncements that a law violates the federal Constitution and the mere existence of even a blatantly unconstitutional (according to judicial precedent) law is not enough to get into federal court or to ask a federal court to rule. Sometimes constitutional litigation remains in state court, no matter how strong the federal arguments, and goes from there. It may not be how we like it. But that is how it functions.