S.B. 8, the Texas law that bans abortion after fetal cardiac activity can be detected, relies on a novel enforcement mechanism that was designed to evade early judicial review: It authorizes lawsuits by "any person" against "any person" who performs or facilitates a prohibited abortion and promises plaintiffs at least $10,000 in "statutory damages," plus reimbursement of their legal expenses, if they win. That "unique and unprecedented" arrangement, a Texas judge ruled yesterday, violates the state constitution's standing requirements for civil actions, the separation of powers, and the right to due process.
Travis County District Court Judge David Peeples was responding to 14 lawsuits challenging S.B. 8, which took effect at the beginning of September. His 48-page order emphasizes how the law's "completely new" enforcement mechanism favors plaintiffs over defendants and warns that the same strategy could be deployed against all sorts of politically disfavored constitutional rights.
Crucially, Peeples says, S.B. 8 plaintiffs need not claim any personal injury, and the state's lawyers "said offhandedly, in papers filed with this court, that 'any person' means anyone in the world." But in practice, he thinks, S.B. 8 plaintiffs will tend to be Texas residents, because the law "modifies the usual rules" by saying that "any Texas claimant may choose to sue in the county where he lives," as opposed to the county where the defendant lives. It says the venue can be changed only if all parties agree.
In a big state like Texas, Peeples notes, "venue is especially important because it is so much more inconvenient and expensive (in terms of money and lost time) to litigate a case in a distant forum. But venue is not just about distance and inconvenience—to choose venue is also to choose the judge (or judges) and the jury pool. All this can often influence the outcome, sometimes decisively."
"SB 8 empowers some 21+million Texas adults to file enforcement cases," Peeples notes. "Each of Texas' 484 District Courts, many of its 256 Statutory County Courts, and all of its 840 Justices of the Peace would have jurisdiction to hear these cases." Litigants and activists "will learn quickly which venues and courts are friendly to SB 8 suits and which are not," he says, and "SB 8 filings will gravitate to the more favorable venues." People who support the law and have the resources to pay for attorneys could bankroll lawsuits by like-minded Texans who live in the counties where the prospects of prevailing are strongest.
S.B. 8 authorizes lawsuits against anyone who "aids or abets" a banned abortion, explicitly including insurers or anyone else who pays for the procedure and implicitly including various other ancillary actors. That means the bounty can be multiplied several times in any given case. "A judgment against defendants Dr. A, Nurse B, Contributor C, and Driver D would not be simply a joint and several judgment for $10,000, collectable against any of the four defendants for a total recovery of $10,000," Peeples says. "Instead the claimant would have a judgment against each defendant for $10,000 individually, for a total of $40,000—plus more if the court awards more, in addition to costs and attorney fees."
Peeples mentions two other features of S.B. 8 that make the threat of litigation especially daunting. While "lawyers and law firms who advise their clients to bring a pre-enforcement challenge to SB 8's provisions are potentially liable for the claimant's attorney fees," he notes, "a defendant wrongfully sued and totally innocent can never recover his attorney fees from an SB 8 claimant." Furthermore, "the longstanding rules of claim preclusion (res judicata) do not apply in SB 8 cases."
That means "a judgment against an abortion defendant does not bar additional lawsuits against him on the same facts and same event unless he has paid the judgment in full." Hence "second and third claimants litigating the same event have every reason to pursue their lawsuits in other counties because if they are the first to collect, their judgment will be first in time and will bar the others."
This scheme, Peeples concludes, is inconsistent with the Texas Constitution's separation of powers provision, which "denies the judiciary authority to decide issues in the abstract," and its "open courts" provision, which "provides court access only to a 'person for an injury done him.'" He says case law "establishes that standing in Texas generally requires some kind of harm or injury."
The state cited previous exceptions to that general rule, including a 1915 Texas Supreme Court decision that allowed a private lawsuit under a statute authorizing "any citizen" to seek an injunction against a "bawdyhouse." But in that case, Peeples notes, the plaintiff alleged that the brothel, which was near his business, had caused him economic harm, and the remedy did not include monetary damages.
"None of the cases that mention statutory standing involved a statute that granted standing to 'any person,'" Peeples writes. "And none authorized the claimant to win a significant, mandatory amount of money without showing any connection to, or harm from, the defendant or his conduct. Many of the statutory cases grant standing to challenge the action of a government agency. None give persons standing to seek a money judgment against a fellow citizen, and then to use the machinery of the courts and collection procedures of our rules and statutes."
Peeples thinks the state's analogy between S.B. 8 and "private attorney general" laws is inapt. "It is one thing to authorize taxpayers or citizens to file suits against government officials to make them obey a law, and to compensate these private attorneys general for their time and trouble and their attorney fees with money from the state treasury, as statutes sometimes do," he says. "It is quite another thing to incentivize citizens or persons to file suits against other private citizens to extract money from them, with no pretense of compensating the claimant for anything."
Based on the relevant precedents, Peeples concludes, "SB 8′ s grant of standing for persons who have not been harmed to sue persons who have not harmed them, mandating a large award without proof of harm, is unconstitutional." He also holds that the lawsuits authorized by S.B. 8 amount to "an unguided and unsupervised delegation of enforcement power to private persons," which "violates the Texas Constitution's separation of powers provision."
Peeples likewise agrees with the plaintiffs that S.B. 8 violates the 14th Amendment's guarantee of due process. "SB 8 is not compensatory, and it is not a form of statutory liquidated damages known to American law," he says. "The statute authorizes punishment by civil lawsuit, and deprivation of property, without due process of law."
S.B. 8 "cannot lawfully be punitive without observing at least some of the constitutional rights and procedures for criminal cases," Peeples says. "SB 8 does not come close to satisfying constitutional due process. Instead it lessens the procedural rights enjoyed by other civil litigants, such as a court and jury with discretion to assess damages, and fair notice of what the court and jury may consider when deciding whether to award more than the statutory minimum."
Peeples rejected the plaintiffs' argument that S.B. 8 violates a right to abortion protected by the Texas Constitution, and he did not address whether the law is consistent with the U.S. Supreme Court's abortion precedents (which it clearly is not). But he devotes several paragraphs to a concern that Justice Brett Kavanaugh raised when the Supreme Court considered whether S.B. 8's reliance on private civil actions means federal courts cannot rule on the law's constitutionality before it has been enforced: If Texas legislators can use that trick to delay judicial review, so can legislators elsewhere who disapprove of other rights recognized by the Supreme Court.
"In our polarized country," Peeples warns, "other states with different electorates and different priorities might decide to use these procedures to put other people out of business or to stamp out behavior they dislike intensely, including other areas of life covered by constitutional law. The undesired activities targeted in other states, of course, might be different from abortion providers in Texas."
A state might, for example, "copy the procedures and replace the abortion provisions with language that forbids openly carrying guns, or with language requiring trigger locks on all guns." A state "might use the procedures to enforce discrimination laws against bakery owners who will not, as a matter of conscience, decorate a cake with a message that is offensive to them or that violates their religious beliefs." Legislators could attack constitutionally protected speech by "adapt[ing] these procedures to single out climate change deniers, or those who utter 'hate speech,' or American History teachers who teach X or don't teach X." They could even chill the speech of pro-life activists by authorizing lawsuits against them.
Needless to say, conservatives who applaud S.B. 8 because they oppose abortion won't necessarily like the results when people with different views use the same approach to promote their agendas. "We are a diverse and creative people, and it seems naïve to hope these procedures will be cabined voluntarily once they are upheld," Peeples writes. "A new and creative series of statutes could appear year after year, to be enforced by eager ideological claimants, who could bring suit in their home counties, where the judges would do their constitutional duty and enforce the law. Pandora's Box has already been opened a bit, and time will tell."
Texas plans to appeal Peeples' ruling. "We have said all along that in order to fully restore abortion access in Texas, we need a decision in the U.S. Supreme Court or the Texas Supreme Court," Julie Murray, a senior staff attorney at Planned Parenthood, told The New York Times. "Today's decision is a step in the right direction, but it is not enough relief for abortion providers."