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

The federal courts will lack jurisdiction over pre-enforcement suits against state officials.

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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:

Below the jump, I'll include links to other interviews I've done on the topic. (I've been busy).

NEXT: Pennsylvania Voters Approve Restrictions on Governor's Emergency Powers

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  1. Sounds too clever by half. But maybe it will work? I can’t think of a strategy against it. Mandamus for every judge in the state against them accepting such a suit? Filed in the relevant appellate courts?

    1. For over four years I’ve been saying that the left’s practice of getting national injunctions against Trump was setting a terrible precedent that would come back to bite the left.

      Now it has.

      This isn’t the same thing as a Federal judge in Hawaii telling the US Government what it can’t do at Logan Airport in Boston, some 6000 miles away, but it’s the same form of loophole lawfare.

      To the left, i have but four words: I Told You So.

      1. “To the left, i have but four words: I Told You So.”

        You told them all sorts of things, and none of it was accurate. Your streak remain unbroken.

    2. “I can’t think of a strategy against it.”

      Civil suit for conspiracy, to invade medical privacy contrary to federal law, and for tortious interference with contract. What happens when Planned Parenthood takes discovery from known “pro-lifers” regarding plans to use this statutory scheme? You think they successfully quash the discovery, or that they honestly have no evidence of planning to do anything that could lead to liability? I would expect PP to come out ahead.

  2. This statute stands in a very different posture. On my reading, a pre-enforcement challenge is impossible. Why? There is no one to sue!

    Perhaps Blackman thinks this is funny.

    How about federal criminal prosecutions for all those, “private attorneys general,” charging them with conspiracy to violate civil rights under color of law?

    1. Josh even repeatedly states in his post that the state law leaves it to “private attorneys general” to enforce the law. He literally refers to the potential plaintiffs as being “private” enforcers of law akin to the typical public enforcer (the Attorney General). Texas was even kind enough to include the following statement in the law’s Legislative Findings:

      “Texas has compelling interests from the outset of a woman’s pregnancy in protecting the health of the woman and the life of the unborn child”

      Texas passes a law asserting its state interest and then delegates the enforcement of its state interest to private individuals, enticing them with a $10,000+ reward. These individuals, acting under the law, will then attempt to deprive others of constitutional rights. They will do so using state-created substantive statutory and procedural rules in state-established courts operated by state employees.

      Whether its a “symbiotic relationship,” “conspiracy,” “close nexus,” or “entwinement,” it looks a lot like state action. Josh should maybe give a heads-up to the “private attorneys general” that they open themselves up to being sued for damages under § 1983.

    2. The real issue here is “pay for” and there is no mention of that in Roe. Nor is there anything other than the woman’s right to an abortion, no right to perform one.

      What they are doing here is similar to how legal opiates are now largely banned, penalizing the prescribers and manufacturers and not the users.

      And to have a conspiracy, you have to have conspirators, and these are all independent actions.

      The interesting question is if three such actors could bring three separate suits in three different counties for the same abortion….

      1. “And to have a conspiracy, you have to have conspirators, and these are all independent actions.”

        Sure. wink-wink.

    3. “How about federal criminal prosecutions for all those, “private attorneys general,” charging them with conspiracy to violate civil rights under color of law?”

      For filing a lawsuit?

    4. Has criminal liability ever been applied to a plaintiff in a private lawsuit on grounds that the law underlying the complaint is unconstitutional?

      The First Amendment right of peacable petitition would appear to prohibit attaching criminal liability to the act of filing a lawsuit. The remedy is to strike down the law and dismiss the lawsuit.

      Moreover, the grant of cert in Dobbs creates at least a possibility that everything will be up for grabs and the law will be upheld. Given this, I don’t think even sanctions for frivolousness would be in order.

      I can’t speak to whether the law’s drafters have succeeded in insulating state officials from being defendants in a typical Federal pre-enforcement lawsuit.

      However, I would think that if there are any private individuals out there who are contemplating filing a lawsuit of this kind and publicly document an intent to do so, I don’t see why a pre-enforcement challenge wouldn’t be available.

      Activists tend to be vocal about these things. I suspect some activist or other is going to leave enough of a paper trail about their plans to file a lawsuit to create standing for a pre-emptive action in federal court in which the private activist would have the role usually held by state officials.

      For this reason, I am no means so sure this statute will actually prevent pre-emptive lawsuits. It seems to me that all folks targeted by this law may need to do is keep tabs on activists likely to file a lawsuit of this type, and identify evidence that an activist is planning to sue them under this law that they can then use in federal court to show they have standing.

    5. No way, Stephen. They have a constitutional right to access the courts.

      Punishing people for filing a statutorily authorized lawsuit is basically tyrannical. I have no problem throwing those lawsuits out of court if the law is unconstitutional, but your proposal is despotism.

      1. Dilan, you beg the question. You say it is a lawsuit. I say it is a sham, covering an attack on civil rights under color of law. The question you are begging is, which is it?

        How to decide the question? Why not compare these so-called lawsuits to others, and see if they look the same, or work the same as any other lawsuits you ever heard of. No? Then maybe I win the point.

        As for tyranny and despotism, those aren’t legal terms. I’m fine with calling these Texas antics tyranny and despotism, and calling what I am doing opposition to tyranny and despotism.

        You? Put you in the Jim Crow South and you would be insisting that opposition to literacy tests was despotism—just like every white person in sight would insist—because literacy tests had not been declared unconstitutional.

  3. What an interesting idea.

    Can we get around the Second Amendment and ban guns in a state where we don’t like guns, using the same kind of trick? Can NY State pass a state law saying the state won’t do anything against you for owning a gun, so you have no standing sue the state in Federal court and invoke the Second Amendment to prevent enforcement of the ban, but, anyone in the state who objects to guns can sue your ass off if you sell, or transport, or rent, or teach the use of, a gun, or if you run a club and allow people to shoot guns in it, or if you advertise guns in your privately owned paper or magazine, and the courts must favor the plaintiff and award your ass (or some large portion of it) to him as punitive damages? If not, why not?

    Are there any constitutional rights which cannot be subverted with a maneuver similar to this one?

    1. Oops

      I meant to add that under my hypothetical same-trick gun-ban, individuals would also be authorized to sue you for OWNING a gun or FIRING one in any context whatsoever (unless you are specially authorized as a law-enforcement officer or licensed private security provider), and the courts would be similarly mandated to rule for the plaintiff and award big punitive damages to him against you. I left that out. Sorry. Please add them to the list.

      1. Those seem like intelligent objections, Mr. Toad.

        1. I honestly cannot tell whether you are speaking sarcastically or not! If not, then thank you.

          Now I’m having a waking dream: the Federal government passes a law saying “We won’t prosecute you for refusing to quarter Federal troops in your home in peacetime, but if you refuse, then anyone in the country shall be authorized to sue you, and the courts shall be mandated to find in his favor, and award big damages to him from you!” Like, this guy (wearing green) can sue you:

          https://www.youtube.com/watch?v=gDbBhzIcYj4&t=4596s

          1. Missing the whole, “and the courts shall be mandated to find in his favor,” part. I see nothing here that requires the courts to rule in his favor.

            1. Numerous grounds for dismissing the lawsuit, or for finding in favor of the defendant (ie the abortion-worker or assistor who is being victimized by the nuisance lawsuit authorized by the law), are specially excluded from consideration by the law. (Section 171.208(e)). That is a mandate to the court to not consider some of the defense’s arguments. Now that I think of it, this part also may be worth imitating in our similar un-challenge-able-because-not-enforced-by-the-state bans. How about when NY State writes the same-strategy ban on all gun-ownership in NY State, we add a section to say:

              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 — Oh hell, let’s just cut the warm-up and go straight to the point) or anything else the defense might try: any other claim, precedent, case-law, fact, allegation, evidence, history, argument, challenge, impeachment, motion, or dirty joke, which the defense may make, in or out of court.

              If the law can mandate that arguments the defense might make must be considered invalid (“are not a defense”) by the court, why not go the whole hog?

              Now do you see the mandate?

          2. No sarcasm at all, Mr. Toad. You seem spot on.

            1. The whole thing seems to be a reductio-ad-absurdum of the concept of standing. In a sensible and just world, SCOTUS would intervene on its own initiative and rule that anyone who suffers a cost caused by an improper act or omission — including opportunity cost! — has automatic standing to sue the person responsible.

              1. Or just that a threat of a lawsuit authorized by a statute confers standing.

    2. The (similar) analogy that occurred to me after reading the law would be a state law that creates a cause of action for a private individual to sue anyone who knowingly provides or aides a person in obtaining a certain class of firearms. Remember, you want to be clever and disingenuous when you craft the statute. You don’t want to go head-on after every firearm, you want to try and push back at the constitutional edges (with the long-term goal of eroding the whole thing). So, maybe start by focusing on the ambiguous term “assault rifle.”

      Also, you want to make clear that you are not targeting the owners of these guns, but rather individuals who knowingly provide the guns. You want to create an environment where the suppliers of the firearms refrain from providing them out of fear of litigation. To incentivize individuals to sue, you provide minimum statutory awards of $10k. To incentivize attorneys to represent the plaintiffs, you provide attorneys fees. To disincentive attorneys to represent the gun supplies, you prohibit attorneys fees for them. Also, make sure to include language that prevents any organization from challenging the law on behalf of gun owners.

      Then, once the law is passed, you come to to this blog to read the posts decrying the law and developing novel legal theories for challenging it. Then, you use those legal theories to challenge the abortion laws.

      1. You need the local judges on your side. Otherwise the plaintiff gets sanctioned for bringing a frivolous case.

        If the cases become common then I can imagine collusive suits. I buy a gun / perform an abortion. You sue me. I pay you $10,000. You pay $9,000 back to me. Now I am immune from suit for the same offense. One problem with my scheme: You need a lawyer to sue on behalf of the government, at least if precedent from the False Claims Acts holds. The lawyer may think something i

        1. s wrong with the arrangement. So find a strongly pro-Second Amendment (pro-abortion) lawyer.

          (I walked away for a few minutes and my half-finished comment posted itself.)

        2. That’s been tried: _Lord v. Veazie_.

    3. Been to Massachusetts lately???

      1. No. Massachusetts has a YOU in it, which makes considering a visit rather odious.

    4. Grant the premise that the Constitution’s Abortion Clause is on a par with the Second Amendment, and you can have all sorts of fun hypotheticals.

  4. Seems slightly like the fdcpa (fair debt collection practices act) insofar as consumer plaintiffs serve as “private attorneys general” by bringing lawsuits against abusive debt collectors.

    And some of the fee shifting stuff for the costs/attorney fees.

    Although states/fed also have cause of action under the fdcpa.

  5. For a preview of things to come . . .

    . . . Look at how downscale places like Lubbock and disaffected clingers like Prof. Blackman have been getting stomped by their betters in the American culture war for more than a half-century.

      1. In the referenced case (prof. Blackman), that would be anybody who teaches at a better law school.

  6. I’m not seeing how 171.208(e) 4 works. A state law can’t erase the supremacy clause.

    I see how the law gets the state out of being sued, certainly, but it doesn’t prevent a federal court from striking the law down as unconstitutional, at which point the state courts couldn’t permit the private AG’s to prosecute.

    1. No, and I don’t think it purports to. It just purports to prevent anyone from relying on their (ultimately not justified) belief that the law is unconstitutional.

      1. It looks like it’s meant to circumvent the state AG refusing to enforce the law, and maybe get past a preliminary injunction, and that’s about it.

    2. A federal court “strikes down” a state law in two ways:

      1. By granting an injunction against the state official responsible for enforcing the law. Such an injunction would kill the law. Texas has written the law to avoid an injunction.

      2. By ruling in a particular case that the law can not be enforced, either on the facts presented or under all possible facts. Such a decision is only binding on courts inferior to the court making the decision, or on parties to the case. Texas state courts are not bound by precedential decisions of the Fifth Circuit. You would have to go to the Supreme Court and say there is a split between the state and federal courts of Texas and ask for a decision binding on both.

      Here in Massachusetts I have seen state cases choosing to follow First Circuit precedent to avoid creating a split among courts with concurrent jurisdiction. If the judges feel strongly that the First Circuit got it wrong they are free to disagree.

      1. As I understand what Blackman wrote, the initial case must be a civil action in state court where (for example) Planned Parenthood is sued. Assuming the plaintiffs win, can the defendant appeal to a federal court (would it be a district and circuit court?) by raising a federal constitutional issue during the initial trial (noting, that a ruling in their favor would not bind state courts, at least as to non-parties)? Or, must the defendant exhaust appeals through the state court system before asking SCOTUS to grant cert?

        1. If the case starts in Texas state court it can be appealed to the Supreme Court, not any lower federal courts. If the plaintiff is from out of state AND the damages sought exceed $75,000 then the defendant can remove the case to federal district court for trial there. If I were the federal judge I would then kick it back to state court unless the plaintiff showed some form of harm.

          1. If federal law still says abortions are legal, then removal is not based on diversity but on federal question. then the federal court can’t remand to state court, until it resolves the conflict between state and federal law.

    3. “I see how the law gets the state out of being sued, certainly, but it doesn’t prevent a federal court from striking the law down as unconstitutional, at which point the state courts couldn’t permit the private AG’s to prosecute.”

      Why not? Unless it’s the supreme court, state courts aren’t bound by federal court precedent.

      1. ” Unless it’s the supreme court, state courts aren’t bound by federal court precedent.”

        Alright, that was somewhat news to me. But this arrives at the Supreme court pretty fast, I expect. With a “private AG” colluding with a defendant to create an ideal test case.

        1. That depends on whether there are enough votes to grant cert.

        2. Classic Brett. It wasn’t “somewhat news to you,” you didn’t know it. But you can’t say that, can you?

      2. “I see how the law gets the state out of being sued, certainly, but it doesn’t prevent a federal court from striking the law down as unconstitutional, at which point the state courts couldn’t permit the private AG’s to prosecute.”

        Why not? Unless it’s the supreme court, state courts aren’t bound by federal court precedent.”

        So it’s a two-step process: 1. remove to federal court 2. move to dismiss as moot.

      3. “Why not? Unless it’s the supreme court, state courts aren’t bound by federal court precedent.”
        So PP will develop a template filing for removing these nuisance suits to federal court, which ARE bound by federal precedent.

  7. I take your point on no one having standing to get this declared unconstitutional, but I wonder whether any of this violates the 6th amendment by allowing these private AGs to conduct a criminal trial with the rules of a civil trial. Particularly that $10,000 minimum damages amount seems like a criminal fine to me, and if you want to do that you should have to prove your case beyond a reasonable doubt in criminal court.

  8. What would prevent a woman who obtains an abortion in violation of the law from suing the doctor who performed the abortion?

    1. I’d assume nothing. Presumably that’s a feature, not a bug, since it’s an article of faith among US conservatives that women always regret having an abortion, and feel very guilty afterwards.

      1. True, if you replace “always” with “sometimes” and “article of faith” with “well-grounded view.”

        1. If you replace reality with things we firmly believe should be real.

          1. Women’s letters to the right-wing troglodytes at the BBC.

            “Sometimes I regret my decision as I never got pregnant again but it’s something I live with.”

            “I decided very regretfully on an abortion”

            “Looking back, I think we do regret it now.”

            “I’d tell them: ‘This is YOUR decision, and whatever you decide is the right choice. There will be times when you’ll regret what you choose to do, but lay them aside, your choice is the right choice because you have made it.'”

            https://www.bbc.com/news/magazine-38775641

            1. So you got someone to go along with your reality-warp.

    2. I think traditional equitable defenses would come into play.

    3. I think she’s really the only one who can. Who else, other than the defendant, would know there was a fetal heartbeat?

      While you could subpoena medical records as part of discovery, you have to start with “on date X” and “on woman Y, who had a fetal heartbeat.”

      I highly doubt that HIPAA will permit private individuals wholesale access to PMI — or that someone planning to perform an abortion will document a fetal heartbeat. So they’ll erase the ultrasounds, or not do them….

      Other than knowing she’s female, how do you know a woman had an abortion?

    4. The “clean hands” rule?

      1. How does the unclean hands rule affect someone’s right to seek a remedy authorised by statute rather than by equity?

  9. Texas: Let’s do desperate things before we turn blue.

    1. !!!!

  10. Sounds like the Texas legislature has way too much time on its hands.

    This law is nothing more than virtue signalling. Republicans complain about virtue signalling, what they really are complaining about is signalling the wrong virtues.

    1. What goes around will come around: If this law is successful (whatever that means, but hopefully not), blue states will enact laws allowing people to sue Walmart and Target for allowing concealed carry in their stores, after the Supreme Court declares in a constitutional right. People will have the right to carry, but nowhere to carry beyond their cars.

      1. You’ll have to show harm.

        Here Texas does because the fetal heartbeat means life.

        1. You’ll have to show harm.

          Says who?

        2. ” because the fetal heartbeat means life.”

          Newsflash: the cells that will eventually form a fetus are alive even before enough of them differentiate enough to form a heart. For that matter, the individual egg and sperm cells are alive. Shall we arrest men who have sexual intercourse for murdering all the sperm cells who fail to find an egg to join with? If so, what do we do with the men who abstain from sex? Those poor, helpless sperm cells are all going to die!

          1. Every sperm is sacred.

            1. The surgeon general still recommends that you put a little rubber thingy on the end of your dick.

        3. If someone in my state has a gun, they might shoot me with it, or it could be stolen and used in a crime against me. Worrying about that causes stress. Stress is harm.

      2. “If this law is successful (whatever that means, but hopefully not), blue states will enact laws allowing people to sue Walmart and Target for allowing concealed carry in their stores”

        Nah. They’ll pass laws allowing anyone to sue the carriers, open or concealed, with presumptive statutory damages.

    2. “This law is nothing more than virtue signalling. Republicans complain about virtue signalling, what they really are complaining about is signalling the wrong virtues.”

      Sounds accurate. They also complain about “cancel culture” in the rare interludes when they aren’t trying to cancel people.

  11. While I am not a lawyer, actually a retired chemist, let me make and observation and ask a question.

    First I note that the woman having the abortion can not be sued. This is consistent with long standing policy of staying well away from any action toward the woman involved. This seems to imply that women are not able to rationally make the decision to end a pregnancy. I suspect also that no one wants to know why women have abortions and would like to keep their own ideas of why the chose to end a pregnancy.

    The question I have is by putting this into civil litigation do you have the opportunity for the defendant to seek a reduced judgement? Could you get a sympathetic court to simple reduce the judgement to $1? Essential have a law that has no teeth.

    1. “First I note that the woman having the abortion can not be sued. This is consistent with long standing policy of staying well away from any action toward the woman involved.”

      That should be considered little more than a temporary situation. When the USSC strikes down Roe, bills to punish girls and women who o get abortions will be close behind.

      1. I’m not so sure. Hypocritical though it may be, punishing women for having an abortion is wildly unpopular in the US, even among Republicans.

        1. The original basis of that WAS the assumption that any woman who’d set out to murder her own child was presumptuously insane, and so it was properly treated as a mental health, not criminal, issue.

          At the moment, it’s more a matter of the pro-life movement seeing saving the babies as more important that punishing the women hiring the hit men. Once the illegality of abortion was established, though, that calculation would shift.

          1. You know, the mental health laws are an end run around all of Roe — lock up the women seeking an abortion in a mental health facility until their child is born.

            1. y’know Ed, you should probably be careful about advocating that people who are mentally unsound should be locked up for their own good.

          2. “presumptuously”

            This is not a word in English.

            1. Well, unless you use words from the Merriam-Webster English Dictionary, or the Cambridge English Dictionary, or the Oxford English Dictionary, or pretty much any other English dictionary – because the word has been in use for centuries.

              1. The word he wanted appears to be “presumptively”, which you can find in a legal dictionary.

      2. “When the USSC strikes down Roe, bills to punish girls and women who o get abortions will be close behind.”

        they’ll start by criminalizing traveling to a state where abortions are still legal while pregnant.

    2. The general belief among pro-lifers is that women who seek abortions aren’t aware of the humanity of the fetus, and are being intentionally misled by a profit-hungry abortion industry. It’s the right-wing equivalent of the leftist argument that people become obese not through their own free choices, but by helplessly succumbing to the blandishments of greedy corporations. Just as the left believes we should restrict people’s food choices to protect them from these corporate machinations, so do pro-lifers believe that we should restrict women’s medical choices.

      1. “medical choices”

        That sounds like stealing a base.

  12. This is so ultra-libertarian that ultra-libertarians think “Now THAT is ultra-libertarian” in that ultra-libertarian manner of theirs. You know the one.

  13. The statute creates a cause of action but the Texas constitution has been held to require particularized injury before a plaintiff will have standing to sue, much as the federal constitution does. From Daimler Chrysler v. Inman

    The requirement in this State that a plaintiff have standing to assert a claim derives from the Texas Constitution’s separation of powers among the departments of government, which denies the judiciary authority to decide issues in the abstract, and from the Open Courts provision, which provides court access only to a “person for an injury done him”. A court has no jurisdiction over a claim made by a plaintiff without standing to assert it. For standing, a plaintiff must be personally aggrieved; his alleged injury must be concrete and particularized, actual or imminent, not hypothetical.

    1. This may be a bar to some lawsuits, but I don’t think it would be a bar to all. For example, a father (and perhaps a grandparent or other relative) of the fetus would have the necessary particularized injury and interest in the matter, and hence standing.

      1. Yes that could work for some plaintiffs. It’s not the unleashing of a horde of private attorneys general that Blackman makes it out to be though.

    2. “For standing, a plaintiff must be personally aggrieved; his alleged injury must be concrete and particularized, actual or imminent, not hypothetical.”

      OK, what is the personal injury to the state attorney general or district attorney? Alpha murdered Bravo — Bravo (and Bravo’s estate) suffered the injury, not the District Attorney.

      Like it or not, the underlying rationale here is that a murder was committed and hence anyone whom the state designates to prosecute it has standing. Civil versus criminal is interesting, but that line has long been crossed with civil offenses (e.g. speeding tickets).

      Choice of venue is interesting, although I believe that is not that unusual either, although if you want to get fussy about a nexis, the people inclined to bring these suits tend to live in counties where the county court would be supportive of them. I once saw UMass Amherst (Hampshire County) sued in Barnstable County which is Cape Cod and the islands — about as far as you can get from Amherst and still be in Massachusetts.

      1. OK, what is the personal injury to the state attorney general or district attorney? Alpha murdered Bravo — Bravo (and Bravo’s estate) suffered the injury, not the District Attorney.

        Someone violated the King’s Peace, and so a representative of the King can bring suit to seek punishment. Makes perfect sense.

        https://en.wikipedia.org/wiki/Peace_(law)

        1. “Someone violated the King’s Peace, and so a representative of the King can bring suit to seek punishment. Makes perfect sense.”

          We don’t have a King.

          1. James Pollock, whether you call the offended sovereign a King, or the People, the agent of punishment ought to wield more power than mere government. You shouldn’t go around trivializing criminal complaints by titling them with the name of the prosecutor.

            1. Titling them with the name of the non-existent monarch is somehow better?

              1. James, do you suppose only monarchs wield sovereign power? If so, then correcting that misconception is way better.

                Absent sovereign power to enforce the limitations, the notion of limited government becomes nonsense. Absent sovereign power to vindicate personal rights, you would make a self-contradictory muddle out of government—insisting that it must be at once the infringer and the protector of personal rights.

                Without a continuously active sovereign, you don’t even have an author for a constitution.

                If an election is not a sovereign decree, then it is a mere act of government, instead of a means to constitute and control government.

                1. Thanks for correcting the misunderstanding I don’t have.

      2. “Like it or not, the underlying rationale here is that a murder was committed”

        If the underlying rationale here is that a murder was committed then the murderer can be prosecuted for murder, using the existing “murder is murder” statute. something else is at work here.

    3. Doesn’t the statutory cause of action (and associated minimum damages) create standing on someone entitled to bring a case?

      (Yes, I know the Supreme Court rejected this position in Spokeo v. Robins. They were wrong.)

      1. The text I quoted would seem to rule that out in Texas, as the state Constitution requires injury rather than just an opportunity to profit.

  14. 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;

    That makes no sense.

    1. Do you mean as a legal statement or as a policy statement? The legal statement is clear enough to me. If _State ex rel. Blackman v. All That Is Good and Decent_ results in the law being declared invalid by the trial court and the intermediate appeals court, you rely on that precedent at your peril. If it is overturned on further appeal, or in a later case, you can still be sued.

    2. Let me translate.
      If Roe V Wade is later overturned, then it’s not a defense against this law that you were abiding under Roe V Wade, as the law is acting as if it has already been overturned.

      Snowball’s chance of that happening, but clear enough once you read the intent.

      1. Yup. IIUC if Roe is overturned, states other than Texas that still have their laws on the books can prosecute people for violating them.

    3. More to the point, I’d call it ex post facto and therefore void.

      1. It’s not criminal so you have to argue due process rather than ex post facto.

  15. Will mention a comment made on a subthread.

    Activists tend to be vocal. They tend to leave evidence of what they plan to do. So if any private activists out there leave facebook posts or other evidence that they are planning to file a lawsuit of this type, it seems to me that the activists could be sued in federal court in place of state officials, with the evidence of lawsuit plans used to create a risk of imminent enforcement and hence standing.

    So while this law might have succeeded in imsulating state officials from pre-emptive federal lawsuits, I don’t see it follows that it prevents federal pre-emptive lawsuits entirely. People targeted by the law just need to find relevant private imdividuals and show that they are planning to file private lawsuits under the law, thereby demonstrating standing and establishing federal jurisdiction for a pre-emptive lawsuit.

    Activists tend to be vocal. Social media tends to make it much easier to find out evidence of their plans. I’d be very suprised if there wasn’t already an activist somewhere in Texas who is not only planning to file a lawsuit inder this statute, but has already said so and done some of their planning publicly, in a way that someone wanting to file a pre-emptive lawsuit could find out about.

    So I suspect suitable defendants for a pre-emptive federal lawsuit could be found. And finding them may not even be so hard. You just have to accept the law’s framework, think its implications through, and roll with it, rather than demandimg the right to continue doing things the way you’ve always done them.

    1. Further, since abortions ARE being treated as a civil right, thanks to Roe, and since there’s a Democratic administration running the DOJ, lawsuits premised on the plans being a conspiracy against civil rights wouldn’t be out of the question.

      I’d personally say this law is quite clever, to the point of being 150% clever.

      1. “premised on the plans being a conspiracy against civil rights wouldn’t be out of the question.”

        And then the next Republican administration does the exact same thing to BLM supporters. Unlike abortion, “liberty & property” are civil rights articulated by the 14th Amendment.

        I’m not saying that the Democrats aren’t morally bankrupt to engage in politicized witch hunts, only that there are consequences to such things.

        1. Morally bankrupt *enough*…

          And the other thing that such a prosecution could result in a 6-3 SCOTUS decision that the “life” provision of the 5th Amendment precludes such a prosecution.

          Remember that Roe was decided on the “quickening” definition of life because that’s all they had at the time, if decided today on the same standards, it would be fetal heartbeat.

        2. “then the next Republican administration does the exact same thing to BLM supporters. Unlike abortion, “liberty & property” are civil rights articulated by the 14th Amendment.”

          You’re saying the next Republican administration won’t happen until after the 1st Amendment is repealed?

      2. “I’d personally say this law is quite clever, to the point of being 150% clever.”

        It’s unenforceable. clever.

      3. “since abortions ARE being treated as a civil right”

        Never mind the abortion. Medical privacy in general is protected as a statutory civil right. One of the elements that has to be proven is that a fetal heartbeat has been monitored. That’s private health information.

        1. Hacker gets insurance company records and gives or sells them to plaintiff. Plaintiff pleads information and belief with names and dates. Does defendant doctor or insurer have a legal privilege to refuse to admit performing or funding the abortion? Does the woman herself, called as a non-party witness, have any grounds for refusing to testify?

          1. Do people generally have a right to refuse to testify as to privileged information? To shield it from discovery?
            OK, so this specific privileged information is no different from the general case.

    2. The legislature might even discover that its enforcement mechanism has some unanticipated side effects. While the 11th Amendment protects state officials from money judgments and generally permits only injunctions against them, I don’t believe this would be true for the private parties contemplated as the enforcers of this law.

      For this reason, a pre-emptive federal lawsuit against people contemplating acting as enforcers might turn out to have more remedies available, and more bite, than the traditional kind directed at State officials.

      1. I would argue that a private attorney general is a state actor.

        But also remember that this is Texas Federal Court, not DC….

        1. “I would argue that a private attorney general is a state actor.

          But also remember”

          … that you rarely, if ever, know what you’re talking about.

        2. I was wrong earlier when I hypothesized about _State ex rel. Blackman_. These are not private attorney general actions where people sue in the name of the state. They are actions between two persons.

      2. “For this reason, a pre-emptive federal lawsuit against people contemplating acting as enforcers might turn out to have more remedies available, and more bite, than the traditional kind directed at State officials.”

        conspiracy to violate medical privacy sounds like a cause of action.

    3. It’s been argued above that the Texas Constitution imposes standing requirements including a particularized injury similar to the Federal Comstitution, and this would prevent most activist suits, while perhaps still allowing suits by e.g. a father or grandparent of the fetus with a particularized interest in the case.

      If that’s the case, then if activists aren’t suitable plaintiffs, it would follow that they also aren’t suitable defendants, making the approach I proposed above less viable.

      It might still be possible to find e.g. a father publicly discussing plans to sue over an abortion, but probably much harder than a general activist. Such an individual would probably also make a more sympathetic defendant, and one less likely to be treated punitively.

    4. ” I don’t see it follows that it prevents federal pre-emptive lawsuits entirely.”

      It doesn’t. But it seems like you have to get an injunction against any potential plaintiffs, instead of just one injunction, no?

      1. There’s a lot of space between universal injunctions and injunctions that only apply to the named defendant. Assuming standing can be found, I suspect federal judges will be able to come up with something.

    5. So you get injunctions against Alpha, Bravo, Charlie, Dog, Echo, & Foxtrot — Golf can still bring the action. Or Alpha’s wife.

      1. Now tag your menagerie with money damages instead of injunctions. Still think there will be an unlimited supply of plaintiffs?

  16. I notice the law has an exception prohibiting fathers from suing if they impregnated women by rape or incest. I suppose the intended plaintiff is the husband or boyfriend who doesn’t want to abort. Strangers are not likely to be able to plead enough details to get past a motion to dismiss. Fathers have a personal interest distinct from the public at large, possibly getting past the standing issue.

    1. Is there a standing issue in the first place? State courts are not bound by Article III limitations on federal courts; they can grant standing to anyone for any reason.

      1. Oh, I see above that someone said that the Texas constitution does provide similar limits. Okay, then, yes, your argument makes sense.

    2. ” Fathers have a personal interest distinct from the public at large, possibly getting past the standing issue.”

      When medical technology reaches the point that a growing fetus can be successfully transplanted into the father’s body to gestate, then the father’s view of the matter will be equal (or at least potentially equal) to mother’s.

      1. We let parents sue over harms that unrelated parties can not sue over. The court should accept subject matter jurisdiction over a lawsuit by a man plausibly claiming to be the father. If the court than balances the competing interests and says the mother’s is superior, that goes to the merits rather than standing.

        1. Motherhood is a fact. Fatherhood is a strongly-held opinion.

  17. I can’t even with that picture above the jump.

  18. What is the mechanism by which all these private attorneys general may obtain privileged medical information?

    Sounds like they made this thing practically unenforceable.

    1. You sit in the bus and you hear a woman in the next row tell her friend she just had an abortion, and give details about the experience. She mentions something about hearing a fetal hartbeat. There you go, you’re done.

      1. I never heard such conversations when I rode mass transit and intercity buses. You left out the next step, from admission by an anonymous stranger to identity of the liable parties under Texas law. You can’t sue the woman herself.

        1. I agree, discussions of abortions are not something that come up in general conversation. Which get back to the question of how a nonauthorized person gets access to personal records. I think the next step here is anti abortion groups filming clinics to get patients pictures.

          1. Which leads to people who are objectively not pregnant showing up to be photographed. when the “pro-lifers” were trying to make their point by battering women showing up at clinics, abortion-rights supporters started showing up to escort women into and out of the clinics. This was followed by the “pro-lifers” switching to fire-bombing the clinics and shooting doctors.

      2. “You sit in the bus and you hear a woman in the next row tell her friend she just had an abortion, and give details about the experience. She mentions something about hearing a fetal hartbeat. There you go, you’re done.”

        So, in your hypothetical, people who’ve had abortions can’t wait to tell other people about them? Did she also just happen to mention the provider’s name and where he or she can be served with court papers? Because if you didn’t get those pieces of information, you’re not quite so done (at least not in the way you made it sound.)

        1. I didn’t say it was likely. But law of large numbers…

  19. Rube Goldberg constructs like this are rarely successful. Even if they have thought of everything to insulate the law from federal scrutiny, civil litigation takes a long time, is expensive, collecting judgments is not easy, and imprisonment is not a concern. The private AGs likely won’t meet the traditional criteria for injunctive relief so use of that remedy will be limited to activist judges. I doubt Planned Parenthood is shaking in their boots over this.

    1. When Planned Parenthood starts countersuing for tortious interference with contract, the “pro-lifers” can fund Planned Parenthood’s operations! Won’t that be delightful irony?!

  20. An important point I think Prof Blackman missed re Okpalobi: that case is a plurality opinion for 7 out of 14 judges. As far as I can tell, no panel has firmly adopted its analysis since then.

  21. Punishing the doctor but not the woman who hired him is cravenly hypocritical. Trump’s GOP, and even more so Allen West’s Texas GOP, are a party of neutral principles consistently applied. How could they have missed that?

    1. You either do the 100% pure thing or you sit back and do nothing at all. There is no pragmatic third option. It is known.

  22. Why would removal of the private action to federal district court not apply? Whether the State of Texas has an interest in preserving fetal life at so early a stage prior to viability is a federal question.

    1. Normally federal defenses do not allow removal.

      An exception is the First Circuit case _O’Brien v. MBTA_ (1st Cir. 1998) where the defendant state agency was allowed to remove a case to federal court in anticipation of a defense that federal law required it to do unconstitutional drug tests on state employees. I didn’t like the removal reasoning there, but cite it if you like it.

  23. The return of the bounty hunters.

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