Challenging Unconstitutional Civil Liability Schemes, as to Abortion, Speech, Guns, Etc.

By and large, those schemes (like Texas’s SB 8 liability for abortion providers) must be fought by raising the Constitution as a defense in a civil lawsuit—not through preenforcement challenges.


[1.] I think the civil liability scheme imposed by Texas's SB 8 is likely unconstitutional: It's inconsistent with the abortion rights recognized in Planned Parenthood v. Casey (1992), and the "undue burden" defense in the statute is likely too narrow to save it. Moreover, I think such state "private attorney general" laws that basically allow any person to sue over alleged illegal conduct are unfair to defendants. Indeed, Justice Breyer's dissenting opinion, joined by Justice O'Connor, in Nike, Inc. v. Kasky (2003)a case involving a similar speech-based "private attorney general" lawsuit over supposed false advertising—strikes me as quite plausible, and applicable here:

The delegation of state authority to private individuals authorizes a purely ideological plaintiff, convinced that his opponent is not telling the truth, to bring into the courtroom the kind of political battle better waged in other forums. Where that political battle is hard fought, such plaintiffs potentially constitute a large and hostile crowd freely able to bring prosecutions designed to vindicate their beliefs, and to do so unencumbered by the legal and practical checks that tend to keep the energies of public enforcement agencies focused upon more purely economic harm.

That threat means a commercial speaker must take particular care—considerably more care than the speaker's noncommercial opponents—when speaking on public matters. A large organization's unqualified claim about the adequacy of working conditions, for example, could lead to liability, should a court conclude after hearing the evidence that enough exceptions exist to warrant qualification—even if those exceptions were unknown (but perhaps should have been known) to the speaker. Uncertainty about how a court will view these, or other, statements, can easily chill a speaker's efforts to engage in public debate—particularly where a "false advertising" law, like California's law, imposes liability based upon negligence or without fault. At the least, they create concern that the commercial speaker engaging in public debate suffers a handicap that noncommercial opponents do not.

At the same time, it is difficult to see why California needs to permit such actions by private attorneys general—at least with respect to speech that is not "core" commercial speech but is entwined with, and directed toward, a more general public debate….

One can raise the same objection to using the "private attorney general" in the context of abortion; this would be a substantive reason why SB 8 is unconstitutionally overbroad (though note that Justice Breyer's opinion was just a dissent, from the Court's decision not to hear the case for procedural reasons).

[2.] But when it comes to the procedure for challenging state civil liability schemes (focusing here on schemes where lawsuits are brought by nongovernmental plaintiffs), the legal rule seems to me to be quite well-settled. If you think that some civil liability rule is unconstitutional, you can challenge it—but only as a defense when you're sued, not through a preenforcement challenge.

We see this routinely, for instance, in First Amendment civil liability cases. In New York Times v. Sullivan, the New York Times successfully challenged Alabama libel law rules, on the grounds that they allowed public officials to sue based on honest mistakes of fact (and not just knowing or reckless falsehoods)—but only as a defense to a libel lawsuit, after the suit was filed. In Philadelphia Newspapers v. Hepps, the Philadelphia Enquirer successfully challenged a Pennsylvania statute that require libel defendants to bear the burden of proving their statements were true, but again only as a defense to a libel lawsuit. In Snyder v. Phelps, the Westboro Baptist Church people successfully argued that the Maryland "intentional infliction of emotional distress" tort unconstitutionally restricted speech on matters of private concern, but again only as a defense to a libel lawsuit. None of them could have filed a lawsuit up front in federal court seeking to declare the relevant tort law rules unconstitutional (whether on their face or as applied).

The same goes on today. A few months ago, I argued in the Oregon Supreme Court (on behalf of various academics, bloggers, and advocacy groups, as friends of the court) that the Oregon legal rule that denied certain First Amendment libel protection to "nonmedia" speakers was unconstitutional. But the defendant could raise that objection only as a defense to a libel lawsuit. A speaker in Oregon, or the two other states that follow this rule (Virginia and Wisconsin), can't launch a preenforcement challenge to the legal rule in federal court, at least until a particular plaintiff files a lawsuit or at least concretely threatens such a lawsuit.

Likewise, I have argued that, for instance, hostile environment harassment law sometimes violates the First Amendment. Some courts have agreed in some situations. But any such objections generally have to be litigated as defenses in employment law cases, not through a preenforcement challenge. To offer an oversimplified example (but one based on real life), imagine that a legislature passed a law saying, "Any employee who is offended by the display of a Confederate flag by any coworker may sue the employer for damages, and will prevail if a jury agrees that the display of the flag was severe or pervasive enough to create a hostile environment." That would be unconstitutional, I think; but I don't think an employer could challenge the law before it's enforced.

The same would be true as to lawsuits against gun manufacturers or gun stores over criminals' misuse of guns. A federal law, the Protection of Lawful Commerce in Arms Act, preempts most such lawsuits, at least so long as the guns were sold consistently with federal and state statutes. But if a gun manufacturer or gun store thinks that some state law civil cause of action (for negligence, nuisance, and the like) is preempted by the PLCAA, or for that matter by the Second Amendment, it generally can't go into federal court to get that cause of action struck down on those grounds. It would need to wait until it's sued, and raise the federal right as a defense (often in state court).

The conceptual legal point here is that, if I want to block the enforcement of some legal rule, I have to sue the enforcer. For criminal laws, that often means I can sue prosecutors for an injunction against their enforcing it.

But for civil liability, the plaintiff could be anyone. Until a particular plaintiff comes forward to sue, or at least to specifically threaten a lawsuit, there is no-one to sue. The eventual plaintiff is entitled to an opportunity to argue that the legal claim he is bringing is sound, but that eventual plaintiff is unknown. And one generally can't sue the judge who would eventually enforce the law, because our adversarial system of justice doesn't generally view the judge or the court as the adversary whom you can sue (at least until the judge has issued a specific decision that you are challenging, for instance through a mandamus action).

Now of course there are real costs to this approach to asserting federal constitutional and statutory rights: The threat of legal liability can create a powerful "chilling effect" on people's behavior, even before a lawsuit is filed. "[T]he value of a sword of Damocles is that it hangs—not that it drops." Moreover, this system makes it possible for the government to do what Texas did, and what other states have done in other contexts through "private attorney general" schemes: Shift enforcement of laws to private plaintiffs, and thus foreclose preenforcement challenges.

At the same time, for all its costs, our legal system has generally found the chilling effect of such civil liability to be bearable, given the opportunity (however imperfect it might be) to object to such liability once one is sued. Rightly or wrongly, this unavailability of preenforcement challenges to civil liability does appear to be the standard legal rule in our system. And while I do think that the private attorney general schemes, in which the plaintiff doesn't have to show any personal injury, are especially likely to be chilling, to my knowledge they can't be challenged through preenforcement challenges, either.

I may be mistaken; though I know a decent amount about such procedural rules (which are generally referred to under the rubric of "federal courts" rules, or just "Fed Courts," the common label for the class in which they are taught), this isn't my core area of expertise. If you can come up with precedents that would allow preenforcement challenges to such civil liability (again, civil liability in cases brought by nongovernmental actors), I would love to hear about it and perhaps use it. But that's my general sense of the matter.

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  1. I am personally and morally opposed to abortion.

    That being said – this case risks permanently enshrining Roe & casey.
    A) The restrictions 6-8 weeks is vastly more restrictive than at least 4 of the current SC are willing to go.
    B) individual citizens being able to operate as private DA’s is not a wise choice. Slippery slope as they say.

    1. 20 weeks seems like the “obvious” choice for someone who actually wants to achieve a consensus resolution.

      1. 20 weeks seems like the “obvious” choice for someone who actually wants to achieve a consensus resolution.

        “Consensus” among what parties, and why is that “obvious”? For example, according to this/a> global survey (first one I ran across, and a few cross-checks held up — please share if you have a better one), most of Europe is <15 weeks, with the vast majority at 12 weeks or less.

        1. Wouldn’t the better comparison group be developed nations?

          1. Iirc there’s also the issue that in many developed nations there’s less obstacles/more active supports (state paid for for example) and/or availability for early abortions that complicate comparisons.

          2. Europe is most of the developed nations.

            1. About a third of OECD countries are not in Europe.

              1. So you want to quibble that more like two thirds of developed nations are in Europe, not just “most”?

                Do you instead want to point to laws in OECD members like Chile (only allowed in the first 12 weeks if pregnancy was due to rape, or the mother’s life is at risk or the fetus will die anyway)? Or Colombia, which is similar except without the time limit? Or Costa Rica, which only allows abortion to preserve the live or physical health of the birthing person?

                Exactly what were you suggesting?

      2. Unfortunately, judicial review isn’t the best forum for a consensus (i.e., political) resolution.

        In some ways, Roe shows what happens when SCOTUS tries to create/enforce a political compromise. It’s trimester approach probably was about where most States would have ended up given the scientific/medical understandings of that era, and yet, 50 years later, here we are again.

        1. “It’s trimester approach probably was about where most States would have ended up given the scientific/medical understandings of that era”

          ? The states were all free to have adopted that approach then, but iirc only a handful or couple had.

          1. ? We’ll never know where they would have ended up naturally.

            1. The real problem was more Doe v Bolton, decided later that day.

              The Supreme court set out it’s trimester scheme in Roe, which allowed regulation after the 1st trimester, and bans after the 2nd, but with medical necessity having to be an exception.

              Doe v Bolton declared that nobody could challenge a doctor’s declaration of medical necessity, or review it. This freed doctors to make such declarations pretextually without any professional consequences, and rendered the medical necessity exception into something you could drive a truck through. We’ve literally got doctors declaring that 3rd trimester abortions are “medically necessary” because of the normal risks of an ordinary pregnancy, or because a woman being upset about the idea of giving live birth would be a medical health problem.

              1. Decisions of medical necessity made only by…medical professionals? Yeah, that’s the *real* problem…

                1. Unreviewable decisions of medical necessity made by medical professionals. The idea that anybody’s professional decisions should be unreviewable is offensive, that opens the door to fraud.

                  And Doe v Bolton absolutely did that.

                  1. For what meaning of, “fraud?”

                    1. Frauds such as declaring a late term abortion “medically necessary” because the mother potentially being upset about the baby being born alive is a “mental health” issue. Or declaring an abortion ‘medically necessary’ due to normal, not elevated, risks of a healthy pregnancy.

            2. We know where they were, almost all were more restrictive than Roe, which is Roe made such an impact.

              1. Brett seems not to understand that pregnancies pretty much last nine months, give or take.

                Requiring women to wait around for a “review” effectively denies them the opportunity to have an abortion.

                1. The point is that if a doctor has to worry about their declaration of medical necessity being reviewed after the fact, with professional consequences if it was fraudulent, they’ve actually got a motive not to issue them fraudulently.

                  Since Doe v Bolton spared them that threat, some fraction started handing out declarations of medical necessity like candy, due to thinking abortions should be elective at all stages of development.

    2. I expect the court cases to go like this:
      Someone will sue an abortion doctor. Doctor will raise constitutional challenge. Challenge will go to circuit court. Statute will be ruled unconstitutional. SCOTUS will decline to review.

      1. Haven’t you been paying attention? Courts can’t strike statutes, they can only enjoin officials from enforcing them.

        I expect what will happen is there will be a public interest law firm that will handle these cases, the first thing the form will do is get the case removed to federal court, second, get it dismissed, and the boilerplate legal forms will make it pretty easy for all involved, but still a minor nuisance.

  2. If it’s ok for the ATF to ban machineguns by virtue of a tax regime, and John Roberts has specifically endorsed the penaltax, would it not follow that Abortions could be taxed?

    $10,000 seems to be sufficiently high to achieve the political goals.

    1. Bubba Jones: Rightly or wrongly, the Court in D.C. v. Heller took the view that the right to keep and bear arms doesn’t extend to machineguns; that’s why both total bans and heavy taxes on them are constitutional. I don’t think that a $10,000 tax on ordinary handguns, or on abortions, would be constitutional given the Court’s holdings that handguns and abortions are constitutionally protected.

      1. I’d like to see a listing of states that have “civil liability schemes” or statutes & more discussion on this concept.. As you have noted, it could be used against for speech & guns as well.

        1. These types of schemes are the norm in natural resources/environmental law. To the point that I’m confused at how shocked everyone seems to be about this. You haven’t been able to build a bird house on federal land without getting sued by three different activist groups in 40 years.

      2. The Court in Heller said, “United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.”

        Of course, the Court in Miller didn’t ask if a sawn off shotgun was in common use for lawful purposes, but instead whether it was suitable for military purposes. ” Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”

        The Heller Court literally took Miller and stood it on its head. I lost a lot of respect for Scalia when I read that decision.

        1. The other issue, of course, with the Court’s ‘in common use’ standard, is that it failed to address that what was in common use had been warped by nearly 80 years of gun control laws the Court had refused to entertain challenges to.

          1. That works both ways, if something can be popular quickly before a rush to buy then it’s magically protected. It was a bad test for sure (though better than what preceded it I think).

            1. Not magically protected, in that case the government actually, (Gasp!) has to make a case for why it wants to ban something. Which is so outrageous where an explicitly guaranteed constitutional right is concerned, right?

              1. It is magical. It’s like saying Ulysses wouldn’t be protected from bans if sales weren’t high but would be if they were.

                1. You really don’t understand the difference between unconstitutional, period, and presumptively unconstitutional, do you?

          2. We are lucky, though, because when it comes to small arms development in America, the private sector makes the investments, its popularized, and then the military piggy-backs later.

            When it was the other way around, back when the government ran armories and developed their small arms in house, while there are a few success stories like the Garand, you have failures more often then not, such as the initial launch of the AR15 and the already outdated by the time it was adopted Krag.

            The procurement process for small arms and ammo is better when the government puts out guidelines and make the weapon’s manufacturers compete.

        2. Of course, the Court in Miller didn’t ask if a sawn off shotgun was in common use for lawful purposes, but instead whether it was suitable for military purposes. ” Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”

          And the court got the answer on that one factually wrong.

          Short barrel shotguns were standard issue by the US military during WWI. They were used for trench clearing.

          1. Was it ‘standard issue?’ I get that it might not have been uncommon but were US soldiers generally issued short barrel shotguns?

            1. They were used in WWI trench warfare. The reason it wasn’t “within judicial notice” was that Miller was a setup job. It was arranged to be a trial in abstensia, with only the government’s side represented before the Court.

              That’s right, the key case for 80 years for a basic amendment in the Bill of Rights was a trial where only one side was argued.

              1. “They were used in WWI trench warfare”

                Used isn’t the same as standard issue, right?

                1. If something is issued to troops, and it’s a standard model not a one off purchase, then it’s “standard issue.” Quantity matters not. Maybe only 1 trooper in 1,000 got the privilege of using a flamethrower in WWII, but it was a standard issue flamethrower.

                  1. Saying flamethrowers are standard military issue certainly doesn’t sound right. I think you’ve got an idiosyncratic definition here.

                  2. The ‘standard’ in ‘standard issue’ doesn’t refer to the sense of ‘standard’ of ‘conforming to a standard established’ but rather ‘regularly and widely used’ or ‘well established and familiar.’ Bazookas weren’t what most people would think of as ‘standard issue’ for WWII American soldiers even though the American military did issue some (relatively very few!) bazookas conforming to a ‘standard.’

                    1. The context of this discussion strongly implies this as it started with ‘common’ usage.

                    2. “Bazookas weren’t what most people would think of as ‘standard issue”

                      I’m queer for military history, and I disagree.

                      One example:

                      “The standard issue antitank weapon for infantry units was the 2.36-inch rocket launcher, commonly referred to as the bazooka.”

            2. You’re moving the goalposts. If a gun is issued to troops in the military, it’s standardized for procurement and logistical purposes. Further, you’re buying thousands of them (and it was thousands) and training and sending forth men to kill and possibly die when using them. You can’t get more “common use” than than.

              On that note, it was considered to uncivilized to use a shotgun in trench warfare, the Germans wouldn’t let you surrender if you had one.

              1. The definition I got upon googling is “the equipment that is generally supplied to individuals in a particular group, especially by the military to members of the armed forces.
                “the standard issue of the United States Army at the outbreak of the Civil War was the model 1855 Springfield rifle musket”

              1. FWIW, that has a 20 inch barrel.

                1. Yes, and soldiers would routinely shorten it further.

                  But that’s irrelevant, the point here is that in US v Miller, the decision as to whether ownership of a firearm was protected hinged on it having military utility, while Scalia in Heller misrepresented the case as hinging on being in common civilian ownership, and rejected as protected military arms, the very arms US v Miller declared to be the ones protected.

                  Whatever you think of the validity of US v Miller, Scalia misrepresented the holding.

                  1. QA’s original question was “were US soldiers generally issued short barrel shotguns?”, and she got examples of not-short-barrel shotguns. I don’t disagree with your general point.

                    “soldiers would routinely shorten it further.”

                    Given the bayonet mount and heat shield, that seems like a fairly advanced DIY trench project.

        3. Scalia did not turn Miller on its head.

          Millers finding was so narrow that it wasn’t an obstacle to Heller. The obstacle to Heller was the way lower courts interpreted Miller.

          Here is the entire paragraph:

          “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”

          Miller specifically acknowledged that the citizens do have the right to “keep and bear” weapons, but just not such a weapon as an 18″ barrel shotgun, Heller clarified that right to explicitly include handguns and other firearms in common use.

          I’d like to see you quote any actual text from Miller that is inconsistent with Heller.

  3. What if Texas argues that they haven’t banned abortions? They’ve merely introduced a monetary disincentive?

    1. Note that the reason PP defends abortion is that it is PP’s primary profit center.

      1. I am pro-life but Republicans opposition to PP is the dumbest position in American politics…the clinics are generally in poorer urban neighborhoods and thus reduce welfare spending (although PP does a poor job I doubt a Republican funded alternative could get away with having clinics located in the same neighborhoods).

        1. End white supremacy! We need gov’t sponsored abortions for all BIPOC who want one, and simultaneously we need to make it illegal for white women to have one.

          1. Abortions before the quickening were generally accepted in the early 1800s, even if not much discussed in polite company. The push to make abortion illegal came in response to a declining white birth and increasing immigration from papist countries (Ireland, Italy) which took real dim views of abortion and birth control.

            1. Thank you for the serious response to my semi-serious quip. That said, “quickening” in a archaic term up term before a modern biological understanding of fetal development.

              I’m not up on the history of abortion laws in America before the 20th Century. I’ll take what you say as a given. But it leads me to ask, are you making some sort of Origionalist argument for abortion rights?

              1. The Equal Protection argument is what leads me to be pro-life but not vote on the issue. So if life begins at conception then we should be trying to reduce miscarriages just like we successfully reduced infant mortality…but outside of 41 year old IVF patients nobody cares about miscarriages….and the 41 year old IVF patient cries for the lost opportunity and not the lost embryo.

                1. The same Amendment that has the EPC speaks of ‘persons *born.*’

                  1. What magic of going through the birth canal grants personhood?

                    1. It might be like the same magic of turning exactly 18 grants you adulthood. Either way in this instance you’d have to ask the writers/ratifiers of the 14th.

                    2. I get what you’re saying, but I’m not talking about the 14th Amendment, nor pretty non-controversial laws regarding adulthood. I’m asking you via logic and rationality, to answer what is it about going through the birth canal that grants person hood? Just answer for yourself.

                      (Besides, the government goes both ways on this…shoot a pregnant woman and get charged with a double homicide in many cases).

                    3. The “magic” is to avoid the absurdity that a woman who has an abortion, as well as researchers and IVF clinicians who destroy embryos, are first-degree murderers. But perhaps, you don’t think those positions are absurd?

                    4. Why would you think laws about adulthood are ‘pretty non-controversial?’ I guess they’re not a hot button political issue (but, hey, we got a Constitutional Amendment about it and the idea is key to contemporary debates about, say, 2nd Amendment rights) like abortion, but the idea that, say, a guy who just turned 18 becomes a child molester by having sex with his long time girlfriend who is 17 years and 364 days old is pretty controversial to many (also see, ‘can vote and make contracts but can’t buy a beer,’ etc.,).

                      In matters of development lines drawn are always going to highlight murky marginal cases. As Josh R points out it’s likely as if not more magical to draw the line elsewhere.

                2. As for IVF, various religious and denominations are against it, because oftentimes it leads to fetal death for several implants, though one or two survive. Catholics are even against birth control because it separates the reproductive act from its natural consequence, the first step in the Sexual Revolution and it’s negative consequences.

                  But really, I think that prolifers would want to end the lower hanging fruit of abortions before you would go after IVF, all else being equal.

                  1. But we know people like Karen Santorum and Tammy Duckworth that have embryo guillotines between their thighs—do you denounce them for being reckless with the lives of embryos even if your priority is ending abortions?? Do you at least feel people should be attempting to maximize the chances a embryo becomes a baby??

              2. No. My attitude on abortions is (a) if I were a woman, I do not know if I would want one unless the alternative was my death, (b) there is no compromise possible on abortion, (c) anti-abortion laws are some of the most inconsistent unenforceable laws I can think of, and are immoral for that reason alone, even more so than speeding tickets.

                1. As for why abortion laws are inconsistent, think of all the ramifications and conflicts.
                  * If you allow abortion for rape, then you are killing the fetus for the crimes of its father.
                  * If you allow exceptions for rape, do you count guys who lie about their status and trick women into sex rapists?
                  * If you allow abortion for pregnancy out of wedlock, do you allow retroactive abortion for grown children after a divorce?
                  * If you allow abortion for incest, you are killing the fetus for the crimes of its parents.
                  * If you allow abortion for fetal defects, such as Down’s Syndrome, you are saying that those born with the defect are not human, and why should we not kill them at birth?
                  * If you allow no exception, then how do you account for the 1/3 (as I remember it) of pregnancies which end in natural miscarriages?

                  We celebrate birth days, not conception days. (The Japanese used to count age as how many New Year you’d been through; could that have been a poor way of throwing some gestation into the age calculation?)

                  There are a million other inconsistencies. I simply do not believe that anti-abortion laws can ever be good laws.

                  1. As a pro-lifer that doesn’t vote on the issue I find your comment interesting. I will say the way I rationalize abortion in cases of rape and incest is the same way I rationalize supporting dropping on bombs on foreign women and children when our homeland is attacked. So if one supports war then I believe one should support allowing abortion in cases of rape and incest. So I believe ACB and Kavanaugh will carve out an exception for rape and incest because they used their lawyerly talents to help George W Bush steal an election and then lie America into a war in which our bombs killed brown foreign babies.

                    1. “George W Bush steal an election and then lie America into a war in which our bombs killed brown foreign babies.”
                      SC you blew all your credibility with that one.
                      Moreover, I don’t know many Arabs who would accept being called people of color. But you could not resist the race card

                    2. I don’t need “credibility” because all of my arguments are based on facts that are very easily verifiable. George W Bush and Katherine Harris stole the 2000 election…so had Harris behaved like Raffensburger did in GA in the aftermath of the 2020 election then Gore would have won FL. And everyone knows Bush lied us into Iraq.

                    3. Oh, yeah, hit me up with that stolen election conspiracy shit!
                      This modern stuff ain’t worth the paper it’s printed on; I need me some of that classic conspiracy, aged like a fine wine.

                    4. SC,
                      W did not steal the election. The NYT post-mortem verified that. What did happen is that Gore was prevented from stealing the election.
                      Whether Bush lied to go to Iraq or was grossly wrong, is now besides the point. It was the worst decision mad by any president in my lifetime. I’ll give you that

                    5. NYTimes verified nothing because Gore wanted a statewide recount of undervotes and overvotes and he never got that. Trump got that in multiple states because Biden wasn’t attempting to steal the election and in 2020 the error rates are much lower than with the older machines Florida had in 2000. Harris refused to do her job because Bush was initially in the lead and so dragging her feet and running out the clock achieved the goal she desired—Bush winning Florida.

                    6. SC,
                      You just want to be blind to what the NYT did report. And you have a faulty recollection of what happened. Moreover, after the first couple of weeks Harris’ actions were irrelevant to what unfolded

                      Gore never did want a reccount of the entire state. It was in fact the fact of his requesting a preferential recount that lead to the decision of SCOTUS that the such a recount violated the Equal Protection Clause. Gore’s chief lawyer was William Daley, son of Richard J. Daley who practiced every political trick in the book to manipulated elections. His son learned them all from his father.

                    7. Gore always wanted a statewide recount but Harris simply refused to perform her job because she wanted Bush to prevail and he was initially in the lead. I think it’s hilarious you believe Gore attempted to steal the 2000 election…you are fucking moron!

                    8. “Gore always wanted a statewide recount”

                      Strange, then, that he only asked for a recount of four counties during the period when he was legally entitled to demand a recount. And only asked for the statewide recount after that failed to put him over the top… And, relevantly, after he was legally entitled to demand a recount.

                    9. Katherine Harris was the only individual that could have ordered a statewide recount…the laws on the books only allowed Gore to go county by county. So yes Gore could have taken several years and gone county by county asking for recounts…or he could target several counties and get the lead and force Katherine Harris to do her job and oversee a statewide recount. Gore did the right thing but the issue was that Harris wanted Bush to win and dragging her feet and running out the clock was her best strategy to ensure Bush keep the lead.

                      I can’t believe you people are so nutty that you think Gore attempted to steal the election by asking for a recount but you don’t think Trump was trying to steal an election asking for a recount…you people are either nuts or morons.

                    10. Gore was trying to steal the election by only asking for a recount of the 4 counties that would put him over the top.

                      And the whole state was eventually recounted, by the NY Times and AP, not using Gore’s standard, but using the standard ordered by the Florida Supreme Court, and Bush won in that recount.

                      But I do agree, Gore would have won if it were not for the Palm Beach Butterfly Ballot, but that had nothing to do with Kathleen Harris or Bush, and just wasn’t correctable in court.

                    11. So you believe Gore would have attempted to stop Harris doing what Raffensburger did in Georgia in 2020?? University of Chicago did the recount (NYTimes is irrelevant) and they found Gore won by most standards.

        2. My preference would be for PP to spin off the abortion services to a separate entity and maintain the actual medical services

          1. I agree, the abortion aspect is too divisive plus having an unplanned pregnancy in the first place is not healthy and means a woman isn’t protecting her body and so abortions mean PP is failing at their primary goal—healthy women that want a planned pregnancy.

          2. It wouldn’t be their preference, because the abortions really are their profit center.

              1. Planned Parenthood Sets New Record for Abortions in a Single Year

                The key point here is that while they perform numerically more of other things like counseling on birth control, it’s not overwhelmingly more, and the abortions bring a lot more money in.

                A few years ago, when Trump started enforcing a Reagan era rule that required separating abortion and other reproductive services to get Title X grants for the latter, PP decided to stop applying for Title X grants, rather than separate their abortion clinics from the other services.

                They’re basically running abortion mills with a bit of other stuff on the side for cover.

        3. “the clinics are generally in poorer urban neighborhoods ”

          Well, duh: Sanger started PP as a eugenics scheme aimed at the poor and minorities. Kind of have to site the clinics in poorer urban neighborhoods if you want to abort a lot of poor black babies.

          1. Let’s have unhealthy babies!! That’s how you make America strong with unhealthy babies!! 😉

          2. Sanger’s legacy is much more complicated than that cartoonish view. Since this is Reason.com you might want to check out Peter Bagge’s graphic novel on her if you’d like to know more about her rather than feed a vilification preconceived for current partisan feelings.

            1. Ah, the old “complex legacy” argument. While true, sorta, could perhaps give that same leeway to say, the ante-bellum South or Thomas Jefferson or Napoleon?

              1. Of course, I mean, there’s a reason why there’s far less of a clamor to stop honoring Jefferson than there is, say, Jefferson Davis.

                1. That attitude has not, in my pretty good (but not infallible memory) not exactly been the case with you in the past.

                  1. It’s always been the case.

                    I mean, Lincoln had views and did things that would wreck a modern politician’s career, but few call for Lincoln to stop being honored relative to someone like Davis for good reason: there’s a balancing done, a taking into account of the times, the trajectory of their stances over their life, the good vs. the bad they did, etc.

                    Ironically I think the problem is a lot of folks such as yourself have a very un-complex view of those who want to stop honoring some people.

                    1. Meh, the RepubliKKKans whataboutism on many issues, from “women and children” in Afghanistan (what about “women and children” at the border and Haiti?) to CSA memorials, should simply be dismissed out of hand. The individual that wants to keep a CSA memorial needs to make the case why that memorial should continue to stand and I haven’t heard one good argument for why the memorials should remain.

                    2. Okay, sure, sure.

                  2. Sebastian Cremmington, here is good reason to keep CSA memorials, but not in their original locations: if they were all collected together at one location, say, Stone Mountain, GA, and given descriptive plaques detailing how and where each memorial came to be originally, it would put, “Lost Cause,” advocacy in just the right light.

                    1. I agree, or Beauvoir.

            2. “graphic novel ”

              AKA comic book.

              About Queenie’s speed.

              1. Certainly, graphic novels can quite excellent literature. But certainly dismissing an entire medium is up to Bob’s speed.

                1. While I enjoy a graphic novel for entertainment purposes, Bob has a point that graphic novels for historical biographical research is kid’s stuff.

                  We try to get kids to get interested in a topic with comic books of Moby Dick, like those Children’s Illustrated Classics edited for brevity from back in the day, before we ask them to read the book in its entirety later.

                  1. As a huge fan of both I don’t think Moby Dick is an any more or better example of great literature than, say, Watchmen. And, mind you, I wasn’t trying to refer someone like Brett, who clearly has a cartoonishly simple partisan view of the topic, to the best scholarly work on the topic but a great, well sourced introductory work.

      2. Someone’s been huffing glue, I see.

        Yes, abortion services are some of the more expensive things that PP offers. That makes sense, right? It’s a full-blown medical procedure! They’re not just taking urine sample, running some lab tests, handing out condoms. Since the government also doesn’t fund their abortion services, they have to cover more of the cost by jacking up the price.

        So, yeah, it seems like fees for abortion services are likely to be a disproportionate source of revenue (relative to other services PP provides) for PP. But that’s not exactly surprising, is it?

        1. Of course government support is also revenue. Pretty darned solid revenue, at that.

    2. It would be like if Texas introduced a monetary disincentive of 10,000 on protected speech (or whatever).

    3. Per Supreme court precedent, they could tax abortions at a rate of 10,000%, and so long as the tax had the potential to yield any revenue at all, the Court would refuse to entertain the possibility that it wasn’t an exercise of the taxing power.

  4. I agree with you Professor V.

    I’m thinking now of something I heard from Steve Vladeck (the other Professor V). His complaint is that the court appears to be using inconsistent standards on the shadow docket. Namely the court decided not to act here, whereas the did decide to act under similar circumstances in Tandon v Newson in April 2021. Obviously this private enforcement scheme is different than the facts in Tandon. But in both cases you have a clearly established right, albeit abortion is an unenumerated one.

    Legally the result may ultimately be the same. But in the meantime the status quo has very much changed in Texas, on the basis of a (for now) unconstitutional law that was concocted for the express purpose of temporarily evading judicial review.

    What do you think of the other Professor V’s argument?

    1. Assuming you’re talking about this:


      If so, I think the charge of inconsistency falls pretty flat, precisely because of the procedural problems with this case that just weren’t present in Tandon. Even if you think the latter decision was wrong, I don’t see anything hypocritical about it except at the highest possible level of generality.

      1. Yea I hear ya. It would be interesting if a similar lawsuit about a similarly concocted scheme from a state like NY or CA, but with the right being speech or religion or guns, came before the court. But by then perhaps this case will have been resolved on the merits. So we may never no. I agree that it’s different enough from Tandon that they can rationalize this.

        1. *may never know

        2. I live in NY.

          I’ll write my representatives to implement a scheme where I can sue any person who helps a person acquire a gun in this state for $10k, and get the gun from the person who’s acquired it, for disposal.

          Double that, if the gun is used in a crime.

          1. Simon,
            I would advise you against going for the $20K guns.

  5. There is also an Equal Protection issue because irresponsible couples like the Santorums aren’t included in the bounty scheme—so having unprotected sex with an over 46 year old woman will result in two outcomes in the event of conception—the poor little embryo will quickly die or the fertilized old egg will result in a fetus with severe birth defects.

    1. I already pointed out to you that at any age the probability of birth defects is only a few percent. As for early miscarriages, those are fairly common at any age, a considerable fraction of ‘failures to conceive’ are actually very early miscarriages.

      1. You are wrong as usual Bellmore. First off, it’s nearly impossible to get pregnant over 44 without medical help not because anything is wrong with the uterus but because the eggs are too old. So sperm can still fertilize and egg…but the result will be a miscarriage and those odds are approaching 100%. So right there you should oppose women that recklessly have unprotected sex over a certain age.

        The chances of the fertilized egg of having severe birth defects are very high and the only reason the numbers might not look bad is because women over 44 use donor eggs which requires medical help. So if one is using donor eggs and under a doctor’s supervision then I think one is being responsible…but if an over 44 year old woman is just spreading her legs and having unprotected sex then Republicans should want her prosecuted just like a woman that has an abortion.

        1. Seriously, you don’t know what you’re talking about. The risk of some types of birth defects actually declines with maternal age. And the risk at advanced ages never gets all that high.

          Really, you usually see menopause before the risk gets as high as 10%. By contrast nearly 100% of abortions result in fetal death.

          1. Wrong as usual. Why do you think it’s almost impossible for women over 44 to conceive without medical help?? They are still having regular periods so that means the sperm can fertilize the egg. We don’t need to do a refresher on the “birds and the bees”…or do we?? Plus as men approach 50 sperm quality declines but not to the degree of women’s eggs…so the Santorums were extremely reckless for having unprotected sex over 46 years of age.

            1. “They are still having regular periods so that means the sperm can fertilize the egg.”

              I think we’d already established that you didn’t have much understanding of reproductive biology. Just because a follicle cycles doesn’t mean it’s going to produce a viable egg cell.

              1. Dummy—menopause is when women stop producing eggs!! If a woman isn’t in menopause she is can still get pregnant according to American Republicans who define pregnancy as beginning at conception and not implantation!! If one defines pregnancy as beginning at implantation then it’s nearly impossible over 44 years of age.

                1. Like I said, we’ve already established your ignorance of reproductive biology. You can stop underscoring it now.

                  1. You are an ignoramus and a hypocrite…you simply can’t come to terms that by your standards the Santorums belong in prison or at least on probation for child endangerment and manslaughter.

                    1. You have not the slightest idea what my standards are, nor do you understand the actual basis of most opposition to early abortions.

                      That’s on top of not comprehending basic reproductive biology, of course.

  6. When have we seen this “no standing” argument before? Just recently, and in a big way, prior to the Texas Heartbeat Law.

  7. The excerpt from Nike, Inc. v. Kasky isn’t showing up as a quote, so it’s a bit confusing to tell which portion is from the decision and which is Professor Volokh’s own analysis.

    1. Whoops, fixed, thanks.

  8. I don’t necessarily agree with this, at all.

    From a policy perspective, I think most people are expecting (happily or unhappily) that SCOTUS will overturn or completely hollow out Roe v. Wade using the Mississippi case. Which means that this is just a matter of months now.

    So this use of the shadow docket seems incredibly irregular. As CJ Roberts noted, both the (currently) dubious constitutionality of the law as well as the truly bizarre procedural mechanism counsel for a stay in order to preserve the status quo ante.

    To put it plainly-
    There is already a major abortion law on the docket.
    This law is truly … we’ll say weird, to be nice.
    To not grant a stay …. and FULL BRIEFING … seems bizarre. Because these procedural issues are novel.

    So, the underlying substance of the case is obvious- clearly unconstitutional. The actual mechanism is unclear, and there has not been briefing or argument yet.

    To allow what is an unconstitutional law to go into effect without a stay because the law is unclear on procedure, without beriefing or argument, makes it appear that the Court is hiding behind procedure. It’s possible that the Court will eventually decide that, “Hey, yeah, cool, someone figured out a way to get this by us!” Or maybe not! (My money is on not).

    But by not granting the stay, at least 5 justices seem to be opining on the underlying substance.

    To quote Roberts-

    “I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”

    That’s what a good judge WOULD do. Pity we don’t have more of those.

    (And in saying that, I acknowledge that Roberts is probably going to be in the majority striking down Roe later. He just wants to do it correctly.)

    1. To not grant a stay …. and FULL BRIEFING … seems bizarre. Because these procedural issues are novel.

      But what would granting a stay do, Loki? I hate to sound like Blackman, but it doesn’t seem like SCOTUS was empowered to issue any order that would accomplish anything.

      1. “I would accordingly preclude enforcement of S. B. 8 by the
        respondents to afford the District Court and the Court of
        Appeals the opportunity to consider the propriety of judicial
        action and preliminary relief pending consideration of the
        plaintiffs’ claims.” CJ Roberts

        The Respondents were Judge Jackson (obviously, as a stand-in for the judges of Texas) but also Ken Paxton (A.G.) and Clarkston (repping the clerks as a class rep, because why not?). Other too, but that should work.

        That should be sufficient; sure, maybe someone really clever will say, “AHA! I’m not enjoined, so I’ll sue in front of some judge and take a chance.”

        I don’t think the correct move to make while the Court is considering something that is too-clever-by-half is to be … too clever by half.


        1. “The Respondents were Judge Jackson (obviously, as a stand-in for the judges of Texas)”

          All the judges in Texas aren’t parties to the case.

          But enjoin them from what? Ruling in favor of a plaintiff? They’re already bound by stare decisis to rule against the plaintiff. And if SCOTUS doesn’t have jurisdiction to rule in the cases cases directly, why would they have jurisdiction to issue an injunction compelling the judges to act a certain way?

          1. Enjoin them from hearing a case.

            1. The correct thing for the lower court to do would be to find that SCOTUS lacks jurisdiction to issue the injunction, and dismiss based on Roe, Casey precedent.

              1. On what basis would a lower court have jurisdiction to act on a pre-enforcement challenge when SCOTUS doesn’t?

        2. So suppose the Supreme Court had issued that order. What difference are you thinking it would make in a suit filed today (that was assigned to a different judge, obviously)?

          For that matter, do you think the lawyers for any of the abortion providers in Texas would be advising them to act any differently if the Supreme Court had done that?

          1. If no suit could be brought, then I would think it would be business as usual.

            1. Nope. This law is insidious in its design. It creates a four year statute of limitations, and says that complying with a court decision that is later overturned is not a defense. So no abortion provider can safely conduct an otherwise-forbidden abortion.

              1. Assume instead this is a criminal statute that also has a statute of limitations and says compliance with a court ruling that is later overturned is not a defense. Right away of course, the attorney general would be enjoined from enforcing the statute while litigation on the merits proceeds.

                But surprise, SCOTUS reverses Roe and the statute is found to be constitutional. What happens to the doctors who performed abortions during the litigation period? Can the AG retroactively prosecute them per the text of the statute? If so, the original injunction had no effect because doctors would be too afraid to perform abortions. That strikes me as absurd, so it must be the case that the original injunction enjoined enforcement for any conduct during the litigation period regardless of the eventual outcome. And the same ought to apply to an injunction against lawsuits authorized by this statute.

                1. In the criminal context, yes, of course. But in the civil context, the same principles do not apply.

                  Remember that the abortion provider in your hypo is not acting in “compliance” with a court ruling; it’s merely acting in reliance on a court ruling. And court rulings do not change the law; they just change whether it can be enforced by a particular party. See this post by Prof. Baude addressing this very issue:


  9. The threat of legal liability can create a powerful “chilling effect” on people’s behavior, even before a lawsuit is filed. “[T]he value of a sword of Damocles is that it hangs—not that it drops.” Moreover, this system makes it possible for the government to do what Texas did, and what other states have done in other contexts through “private attorney general” schemes: Shift enforcement of laws to private plaintiffs, and thus foreclose preenforcement challenges.

    Oh come on, Eugene. This is all legal faculty pettifoggery. What you won’t admit is that the “chilling effect” you describe is the whole point of the law. It’s not incidental. You further fail to take into account the consequences the law will have between now and the day the court – maybe – strikes it down.

    At the same time, for all its costs, our legal system has generally found the chilling effect of such civil liability to be bearable, given the opportunity (however imperfect it might be) to object to such liability once one is sued.

    This is a wild overgeneralization. Among other things the person damaged here, the woman seeking an abortion, is not going to be sued, because the law doesn’t allow it. Instead, she simply won’t be able to get an abortion, and will no doubt carry to term – even in cases of rape or incest.

    The cost of the chilling effect is easy enough for you to bear, no doubt, because it’s not your rights that are being chilled.

    1. Law professors always seem to have a great deal of difficulty pulling themselves out of their outlines. It’s so intellectually lazy. Do we need legal academics to simply recite what the law is, and to defend it in the exact same terms the judges handing it down would use?

    2. Bernard, EV’s advocacy is neither pettifoggery nor failure to admit anything. It may be, as it seems on the surface to be, legal formalism taken to extremes. But I think it also may be purposive—part of a comprehensive attempt to trash the law of libel, and turn it into a nullity.

      If I understand him correctly, EV has argued previously that even in a case of adjudicated libel, with an injunction against republication of the libel, that he—or anyone, I suppose including even a succession of actually malicious, judgment-proof enemies of the person libeled—should be free to republish the libel. His argument seems to have been that if they were not parties to the lawsuit, they cannot be enjoined. They have a 1A right to republish the libel, and aggravate damages to the successful plaintiff, until they themselves lose, and get enjoined specifically, after a trial in which they get to present their own defense.

      However little is left of the law of libel after Section 230, that would put a complete end to libel suits as a practical legal remedy. EV must understand that, so I have to presume that is what he wants.

      1. “They have a 1A right to republish the libel, and aggravate damages to the successful plaintiff, until they themselves lose, and get enjoined specifically, after a trial in which they get to present their own defense.”

        Imagine what you could do under the contrary rule. Say there’s some nasty truth about yourself you don’t want people able to talk about. So, you arrange for a friend to say it somewhere. You sue him for libel, he puts up a deliberately losing defense, you secure your injunction, and compensate him on the sly.

        Now nobody else can violate the injunction, and it matters not a bit that they could easily prove the truth of the statement were they themselves sued, and allowed to mount a defense intended to win.

        1. Has it ever happened? If not, don’t worry about it. If it has, then you are talking about a fraud on the court—and those do seem to have happened, and been discussed on this blog. Seems like folks get punished for that.

          More generally, Brett, are you pro-libel? Do you think it is tyrannical—a violation of your right to speak—that you could be punished for libel if you violate the law? Would it be tyrannical to repeal Section 230, and leave you to contend with libel law full strength, and without license to publish with impunity damaging lies about folks you wish to burden? Do you think the 1A guarantees you a right to do that?

          1. I’m pretty much a “no law means no law” guy, so, yes, I wouldn’t be much troubled if libel laws got scaled back a lot.

          2. Anyway, yeah, frauds on the court happen, and sometimes they’re caught and punished, sometimes they’re not caught, and sometimes they’re caught and not punished. (Because judges don’t always mind frauds on the court, if the judge thinks they’re in a good cause.

            But people keep committing frauds on the court anyway. Should we provide extra incentive to commit them? Extend their reach beyond the immediate parties?

  10. Volokh’s analysis is the most explanatory, clear and persuasive I’ve read all the way around on this. Thanks.

  11. What the volokh guy says does seem about right.

    The fee-shifting in SB 8 is what exacerbates the chilling effect. The range of exceptions to the American Rule (each party pays only their own attorneys’ fees, regardless of whether they win or lose) has been increasing for decades. What basis allows these exceptions, especially in a non-mutual way? Was the supreme court correct in Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 253 (2010), that this general rule can be altered or amended by statute? Even accepting the opinion in Hardt, does it support unilateral fee-shifting by statute, foreclosing it for only one party?

    The FDCPA has fee-shifting favoring the consumer party, but there is risk to the consumer attorney, who often will take a FDCPA case on contingency. It seems that for SB 8, so long as there enough attorneys supported by outside funding, there are no natural or market incentives (risk) to discourage frivolous complaints. If anything, the incentive (from the sources funding the attorneys) encourages filing frivolous complaints. But I guess will we see what actually happens soon enough.

  12. Here’s the essential issue in this case:

    1. All nine Justices are in agreement that, under current precedent, the law is likely unconstitutional.

    2. However, putting aside the histrionics on both sides, this is the essential problem IMO-

    The unconstitutional law is sufficiently novel such that the state might be able to avoid responsibility for passing it.

    3. Now, that can mean one of two things. Either this lack of clarity means that you cannot satisfy your burden for the stay/injunction, OR this novelty of the mechanism combined with the obvious unconstitutionality of the law requires action to preclude enforcement to at least provide time to brief and argue the procedural mechanism.

    I feel very strongly that unconstitutional laws that have been designed to frustrate review should not go into effect until, at a minimum, that mechanism has been examined.

  13. I would think the easiest way to challenge this law is to create a test case with a sympathetic defendant and a plaintiff that wants to lose. Sort of like the backdrop to Griswold.

    1. However, during the pendency of that action, and until a decision by the Court of Appeals, only those original parties are affected. Does the trial court enjoin all 30 million Texas citizens from bringing similar actions in different courts? What about people entering the state after that injunction is issued? Then perhaps only those within that appellate district are affected until the State Supreme Court has ruled. In the meantime it has been very expensive for the myriad of defendants who have been sued, and those contemplating abortions must consider whether “knowingly engages in conduct that aids or abets the performance or inducement of an abortion” will apply to them and whether they will be on the hook for thousands of dollars for penalties and attorney fees.

  14. So, ok, on the “private attorney General” issue …

    Like I am all for having say a weaker version of standing and applying that to state governments, That would seem ideal … but I can’t think of any mechanism to do that. It obviously doesn’t apply to state courts. And, frankly, I am not sure forcing the state courts to follow Spokeo is a particular good idea even from a policy perspective.

    So what is the solution here exactly? Accepting that private attorney generals are bad ideas … and, I would argue, they are bad ideas even if they are suing over violations that are perfectly legitimate and not protected by constitutional law. But what can be done?

    1. Get your fellow citizens to agree that your policy positions are correct, and have them enact them into law either through their elected representatives, or directly if your polity allows it.

      1. Well, yes, but that is not what happened here. What I am saying is there is no legal mechanism to prevent states from simply delegating power from executive to a random person without standing, even though there really ought to be.

        1. Why?

          States can make lots of bad policy decisions. (The substantive abortion restrictions here, for instance, are terrible policy, regardless of who’s supposed to enforce them.) I’m not sure why this particular form of bad decision is so uniquely bad that we need special rules to restrain it.

  15. Sure, you can raise it as a defense, but even if successful, there’s no collateral estoppel effect. Each of the 11,375,857 antiabortion zealots can bring suit against you and you will have to litigate it 11,375,857 times even if you win every single time.

    If there are (say) 257,853 possible people to sue, think of the costs of defending 11,375,857^257,853 lawsuits.

    1. And that’s just in Texas.

      We can expect other red states to enact similar laws.

    2. I didn’t go to math college, but those numbers make it seem like it could cost a lot.

      Even if jeff bezos gave a hitchhiker a ride to an abortion clinic, it doesn’t seem like he could afford the costs of defending 11,375,857^257,853 lawsuits. How many staff attorney’s would bezo’s have to employ to defend 11,375,857^257,853 concurrent lawsuits? Or, even if he settled upon receipt of the complaint, what is 11,375,857^257,853 times $10k in round dollar amounts. Again, I didn’t go to math college.

      1. I associate math with virginity (I mean this literally) so I’m not as sharp on math as I was as a teenager.

        It actually should be 11,375,857 x 257,853. Which is 2,933,298,855,021. Assuming $25,000 to defend each suit, the total cost to defendants would be $73,332,471,375,525,000.

        And Texas is the most populous red state. So assuming 27 red states, and each of them passing a similar law, for a national number you wouldn’t have to multiply the above by 27; not even close.

        There! — not as bad as I thought. Sorry I had you scared there for a moment.

    3. IDK. The courts are pretty good at tossing frivolous lawsuits…even from pro se / in forma pauperis plaintiffs.

    4. I don’t want to understate the burdens, which are real, but I also think you’re overstating them quite a bit.

      A noted in the post, it seems pretty clear that these suits are going to be barred at the trial level by issues that can be raised in a motion to dismiss. That’s not free, but it’s not that expensive either (especially after form pleadings start proliferating from the first few wins). And of course the losing plaintiff still has to cover their own costs, so I don’t know that there are going to be a lot of people who are only interested in filing these suits so that they can lose at the trial level, without pursuing things further. (It also seems to me that if someone is making an argument foreclosed by binding precedent and doesn’t take any action to try to have that precedent overturned, they might not be protected by the “warranted by good faith argument for the extension, modification, or reversal of existing law” exception to frivolousness.)

      In fact, I suspect that most people who would file these suits would do so precisely because they want to try to get this in front of the Supreme Court, which means they’d need to appeal their trial loss, which would in turn give the defendants a binding precedent in favor of their position.

      Conversely, if a lucky plaintiff found a judge who was willing to ignore precedent, then the defendants could appeal, with the same result.

  16. Thanks, Eugene. We needed an explanation of the black-letter law on the availability of preenforcement remedies for unconstitutional civil liability schemes to understand a Texas law that was patently designed to exploit this very feature of the law in order to effect an actual abortion ban, in open defiance of binding constitutional law.

    What a tiresome waste of time this post is.

    What’s needed here is new law. We can now all see that our existing law has this loophole that apparently allows states to outlaw behavior that is protected by the Constitution, and rewards them when they exploit it. It’s time to close that loophole before this shit gets out of hand.

    The courts have done this again and again. Qualified immunity, Bivens actions, state sovereign immunity, the Dormant Commerce Clause, etc. Systemic problems that arise when abiding by the black letter have to be addressed by developing new causes of action, rights or claims. Here, too. We cannot expect abortion providers and other third parties in Texas to put themselves at risk of the kind of legal jeopardy the Texas law puts them in, just so that we can manufacture a set of circumstances that a bunch of judicial calculator-bots will recognize the claim as something cognizable according to the rules we find in the casebooks.

    1. We cannot expect abortion providers and other third parties in Texas to put themselves at risk of the kind of legal jeopardy the Texas law puts them in, just so that we can manufacture a set of circumstances that a bunch of judicial calculator-bots will recognize the claim as something cognizable according to the rules we find in the casebooks.

      Why not?

      Unless I’m missing something, the only penalties a defendant faces are the $10,000 damages and attorneys fees. I guarantee that Whole Womens Health has already spent an order of magnitude more than that on litigating the current case.

    2. +1 This whole “legal” “analysis” crap has to stop. We just need judges who will do the right thing, notwithstanding what “the law” “says”. I mean, WTF was the point of going to law school, if there were gonna be all these “rules” and “procedures” to follow.

  17. Maybe ask Prof Bray to post a comment on the viability of an equitable action to prevent a multiplicity of suits. I don’t know much beyond the existence of the action. I suspect that the action does not contemplate suing 29 million potential plaintiffs, most of whom would never avail themselves of the law, but he could probably give a real answer.

    1. Prof Bray’s emailed reply:

      Very interesting point! The multiplicity of suits ground for equity jurisdiction is carried on in representative suits and then class actions, though there is debate about whether it is entirely subsumed in the class action.


  18. Thanks, Prof. V. Until reading your post I didn’t understand what was going on at SCt; now I do. As you explain it, it’s not that complicated. But the news reports were all full of “Why is the Supreme Court silent?” Followed by “Why is the Supreme Court allowing Texas to trash a WOMAN’S RIGHT TO CHOOSE?!!”
    Could you make yourself available to the major networks to explain what’s going on? My guess is that even the network newsanchors could understand your explanation. Maybe not George Stephanopoulos, but most of them.

  19. “I think the civil liability scheme imposed by Texas’s SB 8 is likely unconstitutional”

    That statement is a non-sequitur

  20. I realize the prospect of someone being “chilled” from committing infanticide must be horrifying to many, but, worry not, eventually someone will bring suit (probably a collusive suit) under the law in a Texas court, you will have your judicial review, and the law will probably be declared unconstitutional.

    What worries me more than states enacting similar schemes is, as Prof. Blackman touched on, that at least three of the justices of the Supreme Court feel they have unbounded power to craft unprecedented “remedies” in matters unrelated to the parties before them, as if they were some celestial body making pronouncements from on high. I doubt the Guardian Council in Iran claims as much power.

    1. Infanticide? This discussion was largely civil and fact-oriented, then you had to toss a Zealot Bomb. I get that you have an extreme viewpoint, but your self-righteousness doesn’t make it true. And throwing out heinous accusations like that based on an assertion that has never been established as a universal truth anywhere, ever, doesn’t advance the discussion at all. It is possible to disagree without being disagreeable. Give it a try.

      1. I personally attacked no one. You personally insult me repeatedly, while simultaneously complaining about lack of civility. Perhaps try taking your own advice.

        1. I said you threw out heinous accusations. Which infanticide is. Especially when it has no basis in fact.

          Follow me here:
          1: Infanticide is murdering an baby
          2: Murder is the unjustified killing of a person.
          3: No one has ever been convicted of murder or infanticide over an abortion because …
          4: it isn’t either of those things. Because a fetus isn’t an infant. Or a person.

          So, yeah. Calling someone a baby killer is a personal attack, especially when it isn’t true. And has no possibility of being true.

          1. He didn’t accuse you of anything.
            Infanticide just means the killing of a child within the first year of birth, with no mention of justification – same as homicide. You are correct that a fetus is not an infant, though.
            Also, the actual name of the crime that abortion would be (if it weren’t legal) would be “fetal homicide”. Almost all states have laws against it, and there are one or two dozen convictions each year.

            And finally, yes, an abortion is the deliberate killing of a human being. It is currently generally legal, which means it isn’t a crime, but that does not magically mean that no human died in the process.

            1. You need to read closer before you post.

              “He didn’t accuse you of anything.”

              And I didn’t say he did. I said he was throwing out heinous accusation.

              “Infanticide just means the killing of a child within the first year of birth, with no mention of justification”

              And I said “Infanticide is murdering an baby”. So, I said the same thing you did.

              “same as homicide”

              Funny, I thought there were justifications like self-defense that justified killing a person. Apparently you know better.

              “Also, the actual name of the crime that abortion would be (if it weren’t legal) would be “fetal homicide””

              And the only hurdle to such a future law would be proving that a fetus is an individual deserving of individual rights. So yes, if the law weren’t the way it is now and anti-abortion people tried to establish their “life begins at conception” fallacy rather than insisting everyone just accept it, “infanticide” and “baby killing” would be accurate. But neither of those things are true today, so calling people baby killers and making accusations of infanticide are unfounded. And, like I said, throwing around heinous accusations.

              “Almost all states have laws against it, and there are one or two dozen convictions each year.”

              Granted. And I find them just as bad as “hate killing” and other escalators that pretend that murder is somehow worse if you kill a specific kind of person. I find it ironic that the people who want to protect pregnant women and those trying to coerce them into fundamentalist Christianity both like fetal homicide laws.

              “And finally, yes, an abortion is the deliberate killing of a human being.”

              No, it isn’t. Zealots can keep screaming about it, but until they actually establish it as a generally accepted truth it’s just as true as any other unfounded assertion by biased parties. The biggest hurdle you have is that the potential for a thing isn’t the same as the thing itself.

              Lacking major organs and brain activity, there is no possibility that a fetus can survive as an individual organism. Until you can convince people that a bundle of cells can survive without the mother, your position is untenable.

              Even a majority of Christians think that abortion should be legal. If you can’t even convince a majority of people predisposed to agree that you’re right, you’re left with forcing others to be your specific flavor of Christian. Or you can just accept the First Amendment and allow people to make their own moral decisions.

              1. I find it amusing you accuse me of reading problems, considering you don’t even know what the words you use mean.

                Homicide (or infanticide) is the killing of a human (or infant). It does not restrict who the killer could be, or whether it was justified or not, or anything else. This is not the same thing as murder, and it is quite revealing that you do not understand this.

                As for the reason for “fetal homicide” laws, it doesn’t have to do with hate crimes or special privileged classes – they exist because of people like you, that deny science and try to claim that humans don’t actually become human or have any rights until the pass through a birth canal.
                And that’s where the rest of your bigoted RAK-style anti-religious rant is simply wrong. The human lifecycle – hell, every mammal and pretty much every multi-cellular life on Earth – begins at conception. This is basic biology. Those cells are human cells, and they are alive.
                If your claim were accurate, then you are either claiming that unliving things magically turn into a human when passing through the birth canal, or that somehow the species changes when doing so. I hope you don’t believe either of those, or you’re into some deep Lysenko-level garbage.

                The “cannot survive” without help is equally stupid, as it applies to LOTS of other humans – newborns, 4 year-olds, quadriplegics, retarded or demented, and so on. Do you think people stop being human when they can no longer take care of themselves?
                On top of that, we’ve had premature births as early as 20 weeks grow into healthy adults, and we regularly do the same for animals in the same stage of development as 10 week old human fetuses.

                I don’t really care what your opinion of abortion is, however, I do care when crazies like you lie about basic facts to try to avoid facing the truth of what you want. You want to classify certain categories of humans as OK to kill at will. But trying to hide behind lies just shows you are both cowardly as well as dishonest.

            2. I’ll make you a deal. You stop trying to force me to be your kind of Christian and I’ll stop trying to force you … oh, wait. I’m not trying to force you to do anything.

              1. I’m not any sort of Christian, and I DGAF what your religious beliefs are.

                So I’ll make you a deal – you stop lying about basic biology, and I’ll stop pointing out your ignorant falsehoods.
                I’m not forcing you to do anything. of course – but if you continue to be a blatant anti-science liar, then you can expect to continue to be called on it.

  21. Planned Parenthood has sued Texas Right to Life in state court in Austin seeking declaratory judgment that the challenged statutory scheme violates multiple provisions of the Texas Constitution.


    The complaint looks persuasive to me. Any comment?

    1. It seems likely to fail for the same reason the federal suit failed. Again, you can’t “sue” laws; you can only sue people, and get injunctive relief against those people. Who are the defendants here? An organization and some private individuals. How are these defendants properly before the court more so than anyone else, including you or I? What relief can the court even grant? A “declaration” that the law is unconstitutional? I suggest it properly cannot, but even if it does, what would that accomplish? A court can only bind the parties before it.

      So, you’re back where you were before – nowhere. I think Prof. Volokh, like the Supreme Court majority, is correct. The only way to challenge the law will be as a defense if/when someone finally brings suit under it. And that suit will come (probably as an engineered, collusive suit).

      1. The complaint also asks for an injunction against the defendants and those acting in concert with them filing suit against the plaintiff abortion providers. The complaint details threats and preparations by the defendants for bringing such enforcement actions.

        Did you read the complaint before commenting? It looks quite well pleaded to me.

        1. And if they get their injunction, what then? Seek a few million more injunctions against every other potential plaintiff? And should every other abortion provider attempt the same?

          This hardly strikes me as the most efficient (or inexpensive) litigation strategy.

      2. A court can only bind the parties before it.

        I know this has been controversial with EV, but hasn’t it been customary in cases of adjudicated libel for judges to bar re-publiction of the libel by anyone?

        1. Forgive me, as I am unfamiliar with this. Is that to say that a court could hold such a re-publisher (which was never before the court) in contempt for violating its injunction? Even if the re-publisher were completely unaware of the injunction?

          1. F.D. Wolf, on your larger question—a re-publisher unaware of an injunction—consult a lawyer, which I am not.

            On the narrower question, however, of an anti-libel injunction of which the would-be republisher is aware, EV has advocated that such an injunction ought to apply only to named parties who have had a chance in court to defend the truth or legal defensibility of their publications. So under the 1A, even knowledge of the injunction is insufficient to overcome a right to republish. A remedy against a particular party is available only after a trial of that party for publishing the libel. Given that, it is probably safe to assume EV thinks other parties who are unaware of the injunction ought to get a pass on violating the injunction. Given the insurmountable burden that advocacy puts in the path of libel plaintiffs, it seems to me safe to assume EV is an advocate for the practical abolition of the law of libel altogether.

            Whether that means as a general matter that other private-party attacks on constitutional rights should also be permitted to heavily burden the exercise of those rights seems less in keeping with what EV says here. He seems at once to be advocating extreme legal formalism, together with inconsistent conclusions about outcomes. I am baffled.

  22. I think the civil liability scheme imposed by Texas’s SB 8 is likely unconstitutional: It’s inconsistent with the abortion rights recognized in Planned Parenthood v. Casey (1992)

    Insert one of those big red “Family Feud” X’s.”

    Planned Parenthood v. Casey and Roe v Wade are unconstitutional.

    1. I’m not a lawyer or constitutional scholar, so maybe I’m missing something. How are they unconstitutional?

    2. Planned Parenthood v. Casey and Roe v Wade are unconstitutional.

      That’s not how words work.

      1. True, they’re more a-constitutional than unconstitutional. The Constitution doesn’t explicitly prohibit justices from pulling stuff out of their asses.

  23. It’s not a pre-enforcement challege, though. The state is not enforcing any law. The end of the law is the creation of a legal right that gives rise to a private cause of action; the challenge would be to the creation of that legal right. And the legal right to X doesn’t just exist as an incentive to suit. Municipalities are kept from enacting contrary laws. The state’s executive is kept from creating contrary discretionary policies.

    In general, the use of a “private attorney general” implies that there is a personal interest that the state recognizes, but one that is not precisely identical with the state’s interest. Compare the civil process that runs in loose tandem with the criminal process in securities law. The former implies that the deft has done real harm against someone, and that harm can be redressed. The criminal process, addressing a state interest that is not precisely identical with the individual’s interest, seeks to preserve the peace of the realm. By asserting the identity of the private interest and the public interest, the Texas statute simply secretly deputizes the citizen as a public AG to vindicate a harm against the state interest. The challenge would be in advance of that enforcement, but since that enforcement is not by the state, the ethic against pre-enforcement doesn’t apply. The state has finished its argument, so it can be challenged.

    Mr. D.

  24. This case points out that the idea that one must sue those who enforce the laws and can not sue about the law itself is wrong. One should be able to sue the state itself over unconstitutional laws, not matter who enforces it.

  25. A question for Professor Volokh or people familiar with Texas law:

    Does the Texas constitution have language interpreted as imposing limits on who can file a suit analogous to the “cases and controversies” language of the U.S. Constitution Article III?

    If so, there would likely still be a substantial set of people who would have standing. For example, anyone who might arguably be in a position to make a custody claim for a child (father, various relatives, etc.) would likely have standing for this and perhaps others as well. But if the Texas Constitution does not permit anyone and everyone and requires some nexus to the events, the situation would then be more analogous to ordinary torts like libel that Professor Volokh discusses in his post.

  26. The Supreme Court of Texas has indeed ruled that Texas has standing rules analogous to the federal government’s.



  27. I suggest the Texas law violates the federal constitution, and can be struck down on that basis. Article IV, Section 4 guarantees to each state a republican form of government. Law enforcement is executive action. Delegating that executive power to random, self-appointed citizens who lack all political accountability cannot be any part of a republican form of government.

  28. I hope everyone can agree that as a general thing, there cannot be a, do-it-this-way-and-it-works method to circumvent constitutional rights. Given that, it follows that the Court better get to work and find some answer to the Texas case different than, “Time to punt.”

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