Texas's Fetal Heartbeat Bill Has Many Private Attorneys General, But Lacks a Public Attorney General

The Volokh Conspiracy

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Today, Texas enacted SB8, the so-called "fetal heartbeat" law. Under the law, generally, "a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child." This provision does not "apply if a physician believes a medical emergency exists."

What makes SB8 unique, and clever, is Section 171.207, titled "Limitations on public enforcement."

…. 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.

In short, state and local officials have no authority to enforce SB8. None. This law can only be enforced by "private civil actions." SB8 has many private attorneys general, but lacks a public attorney general. Indeed, the attorney general "may not intervene in an action," but he can file an amicus brief.

Section 171.208(a) establishes this cause of action:

(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:

(1) performs or induces an abortion in violation of this subchapter;

(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or

(3) intends to engage in the conduct described by Subdivision (1) or (2).

SB8 does not permit a "cause of action against or the prosecution of a woman on whom an abortion is performed." But a wide range of other actors can be sued. Specifically, those who "pay[] for or reimburs[e] the costs of an abortion through insurance or otherwise."

Section 171.208(b) lists the remedies permitted by this new cause of action:

(b) If a claimant prevails in an action brought under this section, the court shall award:

(1) injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;

(2) statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and

(3) costs and attorney's fees.

However, the Defendant cannot be awarded attorney's fees; only the Plaintiff can receive fees.

Section 171.208(e) eliminates many of the conventional defenses:

(e) Notwithstanding any other law, the following are not a defense to an action brought under this section:

(1) ignorance or mistake of law;

(2) a defendant's belief that the requirements of this subchapter are unconstitutional or were unconstitutional;

(3) a defendant's reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this subchapter;

(4) a defendant's reliance on any state or federal court decision that is not binding on the court in which the action has been brought;

(5) non-mutual issue preclusion or non-mutual claim preclusion;

(6) the consent of the unborn child's mother to the abortion; or

(7) any claim that the enforcement of this subchapter or the imposition of civil liability against the defendant will violate the constitutional rights of third parties, except as provided by Section 171.209.

Category #4 is significant. Even if a federal court in Austin declares the statute unconstitutional, that ruling would not bind a state court in Lubbock, for example. State courts are not bound by federal courts. Nor are federal courts bound by state courts. Under Category #7, an insurance company could not invoke the constitutional rights of a third party, such as a pregnant woman seeking an abortion.

Section 171.209 expressly denies third-party standing in state court unless the Supreme Court says otherwise:

(a) A defendant against whom an action is brought under Section 171.208 does not have standing to assert the rights of women seeking an abortion as a defense to liability under that section unless:

(1) the United States Supreme Court holds that the courts of this state must confer standing on that defendant to assert the third-party rights of women seeking an abortion in state court as a matter of federal constitutional law; or

(2) the defendant has standing to assert the rights of women seeking an abortion under the tests for third-party standing established by the United States Supreme Court.

As the law stands now, a defendant can argue that the law imposes an undue burden on the women seeking an abortion. However, this affirmative defense is no longer available if Roe v. Wade and Planned Parenthood v. Casey are overruled.

These suits can be brought in the county in which the claimant resides. And the action "may not be transferred to a different venue without the written consent of all parties." Moreover, this statute prevails over the state Uniform Declaratory Judgment Act. (As I read the law, a Plaintiff could not seek a declaratory judgment that the statute is constitutional). And the state does not waive sovereign immunity for itself, or for its subdivisions.

The Severability Clause is a work of art. I won't even try to summarize Section 171.212. Read it all.

The law takes effect on September 1, 2021.

In recent years, Texas abortion laws met a similar fate. The conservative legislature enacted restrictions on abortion. Planned Parenthood, and other groups, filed a pre-enforcement challenge against the Attorney General and other state officials. The District Court granted a preliminary injunction. And the law never actually goes into effect. This statute stands in a very different posture. On my reading, a pre-enforcement challenge is impossible. Why? There is no one to sue!

The Attorney General and other state officials have zero power to enforce this law. None. Any purported injury cannot be traced to these state officials. Moreover, any injunction running against these state official cannot redress these purported injuries. Planned Parenthood may try to seek a declaratory judgment, but in the absence of Article III standing, the court must dismiss the complaint for lack of subject matter jurisdiction. As we were often reminded during the ACA litigation, if a court cannot issue an injunction that would remedy the Plaintiff's injury, then the court lacks subject matter jurisdiction to issue a declaration. Planned Parenthood cannot sue the state of Texas because of sovereign immunity. Nor can Planned Parenthood sue the legislature that enacted the law because of legislative immunity. The Governor signed the bill, but has no power to enforce the law. There are no state officials to sue.

Planned Parenthood will no doubt file a lawsuit in federal court. But that suit should be dismissed for lack of jurisdiction. Rather, Planned Parenthood will have to wait to be sued in state court. At that time, the defendant can raise various defenses that the law is unconstitutional. But that case cannot be removed to federal court based on federal question jurisdiction. A federal question would not appear on the face of the complaint. Here, the complaint will be grounded entirely on state law. The constitutional issue would only arise from the defense. Under the Mottley rule, removal is not proper. The defendants are stuck in state court.

For a preview of things to come, look to the city of Lubbock, Texas. The voters recently adopted an ordinance that mirrors SB8. It restricts abortions, but does not allow local officials to enforce the law. Rather, it empowers private attorneys general to bring suit. Planned Parenthood challenged the ordinance, and sought a preliminary injunction. The suit was simply filed against the City of Lubbock, and no local officials. The District Court, sua sponte, requested briefing about the Plaintiff's jurisdiction. And the court cited the leading precedent, Okpalobi v. Foster (5th Cir. 2001) (en banc):

To establish a case or controversy sufficient to give a federal court jurisdiction, Plaintiffs must show that they have standing to sue the City. See Okpalobi v. Foster, 244 F.3d 405, 425 (5th Cir. 2001) (en banc) (holding that the plaintiffs—who challenged a state law allowing women who had an abortion to sue for damages the doctor who performed the abortion—had no case or controversy with the state's governor and attorney general); id. at 429–32 (Higginbotham, J., concurring in the portion of the judgment that reversed and remanded for an order of dismissal for lack of standing). Specifically, Plaintiffs must show that (1) "they have suffered, or are about to suffer, an 'injury in fact'"; (2) "a causal connection between the injury and the conduct complained of"; and (3) "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 425 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Here, Plaintiffs assert briefly in a footnote that they have standing to assert their claims against the City, but they do not otherwise address the issue. Dkt. No. 13 at 15 n.16.

Planned Parenthood will have a very tough time getting around Okpalobi. Planned Parenthood may assert a constitutional right to perform abortions, but the organization lacks a constitutional right to a pre-enforcement challenge in federal court.

I tried to summarize this position in an interview for an Austin news program: