The Procedural Puzzles of SB8, Part III: Suing Private Plaintiffs


Our second post explained why abortion providers and reproductive-rights activists cannot bring offensive pre-enforcement actions in federal court against any state official. But one target for offensive litigation remains—the private individuals deputized by SB8 to enforce the law through private civil actions. The plaintiffs in the Whole Women's Health suit recognized this option; they included claims against Mark Lee Dickson, the head of East Texas Right to Life,  an advocate for the law who urged people to bring private suits as a way to stop abortion in the state.

An abortion provider would sue an actual or potential SB8 plaintiff in federal court, asking the federal court to enjoin "any person" from pursuing a state-court action—the same process as an offensive action against a responsible executive official. The key is that "any person" who brings an SB8 action must act "under color" of state law for purposes of a § 1983, the cause of action for constitutional claims. Does he?

We begin with the state-action argument that has been bandied but that does not work—Shelley v. Kraemer. Shelley held that the Fourteenth Amendment prohibits enforcement of racially restrictive covenants. Judicial involvement in adjudicating the action to enforce that covenant constituted sufficient state action for Fourteenth Amendment purposes. But Shelley does not stand for the proposition that Kraemer, the person who brought the state lawsuit to enforce the restrictive covenant, became a state actor or could be sued for bringing that state-law action. Rather, it allowed Shelley to raise the Fourteenth Amendment as a defense in the enforcement action—and obtain SCOTUS review if state courts rejected the defense.

That is, Shelley provides a defense for the rights-holder in defensive litigation; it does not authorize the rights-holder to pursue offensive litigation. Without citing Shelley, New York Times v. Sullivan rested on the same idea. It  allowed the newspaper to raise the First Amendment as a defense in a state-law defamation action, finding state action in the legislative creation of defamation law and judicial adjudication of claims under that law. But no one reads NYT as authorizing The Times to sue Sullivan in federal court.

Rather, our argument relies on the "traditional public function" test, under which a private person acts under color when he performs a function that has traditionally and exclusively been performed by the government, usually those functions essential to or required as an aspect of sovereignty. These include administering elections, providing municipal services (e.g., fire and law enforcement in a private community), and providing medical care to prisoners. It generally does not include using state judicial processes and personnel to enforce state law, even when the plaintiff acts as "private attorney general" to preserve and further the public interest.

Three elements distinguish SB8 plaintiffs from ordinary civil litigants—purely public interest, exclusivity, and public remedies.

The typical "private attorney general" enforces private rights, seeks to remedy personal injuries, and must show a personal injury to proceed; the public benefit of the judicial remedy is an incident of that private relief. SB8 plaintiffs have suffered no personal injury and achieve no personal remedy, beyond the ideological goal of stopping abortions. SB8 plaintiffs sue to vindicate a purely public policy goal—enforcing a statutory prohibition on post-heartbeat abortions—as a substitute for the legislature and executive in their enforcement roles. Government officials perform this role with similar bans and regulations of abortion, suggesting enforcement of statutory rules for the general public is the ordinary province and duty of the government and government officials. SB8 does something unique in delegating the full executive authority over public law to disconnected private individuals.

Private plaintiffs provide the exclusive mechanism for enforcing the public statutory prohibition, substituting rather than complementing government action. That distinguishes SB8 from employment-discrimination laws or California's prior consumer-protection laws, which allow private actions for private remedies while leaving government with an enforcement role (and thus leaving room for offensive litigation to challenge an invalid law).

Finally, § 171.207(c) of SB8 prohibits multiple plaintiffs from recovering for the same abortion. This hints at the purely public, government-centric relief at issue. Government typically punishes, sanctions, or recovers from an individual once for a single unlawful act.  By contrast, every individual injured by an unlawful act can recover for that injury. Section 171.207(c) suggests that all SB8 plaintiffs are collectively performing the government's traditional-and-exclusive function of enforcing the law and sanctioning violations one time for all of society.

If an SB8 plaintiff acts under color and can be sued and enjoined from pursuing state-court litigation, the next question becomes when to sue. Whole Women's Health sued Dickson because his public advocacy of SB8 and of SB8 suits made him a "likely" plaintiff. A lawsuit by providers and advocates in state court named Texas Right to Life on a similar theory. But public advocacy of the enactment of a law and enforcement of that law says nothing about whether an individual intends to do so. (Indeed, using public advocacy as a basis for a suit raises First Amendment concerns).

It appears that providers can make this move only when someone either specifically announces an intent to sue or in fact sues in state court. That has not happened in the current stand-off following SCOTUS's (proper) refusal to enjoin enforcement of the law pending review. Providers have ceased performing post-heartbeat abortions, so no potential plaintiff has anything on which to base an SB8 claim.

Once "any person" brings an SB8 suit, the target provider can sue the state plaintiff, now acting under color of law, in federal court. The provider faces a second hurdle: Younger abstention, which prohibits a federal district court from enjoining a pending state enforcement proceeding and requires the rights-holder to proceed in a defensive posture in the state proceeding. If SB8 were a typical law relying on government enforcement and the government initiated an enforcement action, the federal court likely would abstain. The question is whether Younger applies to a private SB8 enforcing plaintiff acting under color of law.

Providers have four arguments that Younger does not apply.

  • Younger requires abstention in three situations: a criminal prosecution; a "quasi-criminal" civil proceeding through which the government enforces its laws (e.g., enforcing obscenity laws by using a public-nuisance law to shut an adult theatre); and private civil litigation in which the challenge reaches the state court's power to enforce its orders. SB8 actions do not fit of these. The second category comes closest, although this is an open question.
  • Younger applies only if the federal plaintiff/state defendant has an adequate opportunity to litigate her constitutional rights in the state proceeding. Section 171.209(a) attempts to prohibit providers from raising the constitutional rights of their patients as a defense in state court. This is arguably invalid since providers are the targets of the law and have the right to raise all bases for the law's invalidity. But the existence of the provision weighs against abstention—a provider lacks an adequate opportunity to adjudicate the constitutional issues in state court.
  • Younger is subject to several exceptions, including that the state-court action is brought in bad faith, without any hope of obtaining a valid judgment. In banning most pre-viability abortions, SB8 is inconsistent with Roe and Casey and any state-court judgment awarding $ 10,000 for a post-heartbeat-but-pre-viability abortion could not stand if Roe and Casey remain good law. (The district court applied this exception in declining to abstain from Jack Phillips' lawsuit to stop a new civil rights commission action arising from Phillips' refusal to bake a cake to celebrate a male-to-female transition; given the narrow scope of Masterpiece Cakeshop, it is more obvious that an action to enforce SB8 is invalid).
  • Younger has a catch-all exception for "flagrantly and patently" unconstitutional laws. It is not clear what this exception reaches. But if anything qualifies, SB8 would seem to be it.

This under-color argument is subject to a gerrymandering objection—that we have created a rule designed to match the unique elements of this situation. This remains a unique law, to our knowledge the only law providing for exclusive private enforcement of a public right. Nevertheless, a court may reject it for that reason. Providers and advocates thus must prepare to litigate their rights in a defensive posture in state court—violate the law, get sued, and defend on constitutional grounds. We turn to that in our fourth post.

NEXT: My Newsweek Op-Ed: "Biden's Vaccine Mandate Is Counterproductive and Likely Illegal"

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  1. Do you intend to address the Laurence Tribe proposal that the Texas plaintiffs be prosecuted in federal courts for violating the 1871 Ku Klux Klan law, 18 USC 241 and 242?

    1. We have addressed it elsewhere. The § 242 argument relies on the same state-action theory. I think it fails on § 242 “willfully” requirement, which requires specific intent to deprive someone of their rights. Not sure you can make that showing

      1. I think it may be very easy to show that a plaintiff in one of these Texas abortion suits has willfully subjected a person to the deprivation of her constitutional right to an abortion. Many will probably have boasted of it. Also, 241 and 242 do not rely on state action. They allow federal prosecutions of individuals for acts which constitute federal crimes.

        1. Has 241 and 242 been interpreted to apply to lawsuits filed by private individuals, even in the absence of an injunction?

          1. You asked this before. Why would a prosecutor be required to get and injunction against committing a crime before she can prosecute the crime?

            1. It is not clear that sextions 241 and 242 are applicable to the mere filing lawsuits filed in court.

              I am.not aware of any federal law prohibiting the filing of a lawsuit in any court or tribunal.

              Is there precedent for this?

              1. It clearly isn’t applicable to filing lawsuits. Interpreting it that way would violate due process, the right to petition, etc.

                Plus the person filing the lawsuit isn’t trying to deprive the person of the right, he’s trying to argue in court that the constitution shouldn’t be interpreted to protect the right.

                And he absolutely has a right to do that.

                1. I am not sure where you are getting these theories. I see nothing in the annotations to these statutes which would be likely to support your argument. And, if you are a textualist, you would find the meaning of the statute in the relatively short text. If you are basing it on Due Process, there is no absolute right to take people to court. Sanctions have long followed malicious prosecutions and filing frivolous civil complaints.

              2. Westlaw lists more than 500 references to these statutes in federal court decisions. In my cursory scan, I saw no case in which an injunction was declared a prerequisite to prosecution.

        2. 242 does, as shown by the “under color” language in the statute.

          1. But this can be satisfied by the state legislature merely passing the statute giving an individual an apparent right to sue to punish the exercise of a constitutional right.

            1. No, it isn’t. Having a private right of action generally put someone under, even when the person uses judicial processes to enforce it. Otherwise, the federal government could prosecute Devin Nunes for bringing First Amendment-violative defamation lawsuits.

      2. Wouldn’t criminal oubishment be precluded by the Petition Clause of the First Amendment? A complaint initiating a lawsuit is a peacable petition to a government official. And the Petition Clause prohibits making a peacable petition a crime. A sufficiently frivolous complaint can have civil consequences. But criminal punishment? The First Amendment says the federal government does not have the power to impose it.

  2. This law seems to have created its own problems. If anyone can sue, and the first one to sue is the only one who can collect, then why not have Planned Parenthood sue. There is nothing in the law that requires that you be opposed to abortion to file. Now both sides in the test case agree that the law is unconstitutional, and any judgement will simply produce a donation back to the clinic in the same amount, so nobody can really lose. Moreover, the law appears to prohibit any officials in the state from defending it in court. It is long past time that someone opposed to this law create a test case, since the law allows anyone can do so.

    1. Agreed. That is the focus of our discussion of defensive litigation.

    2. The Texas Constitution imposes standing requirements analogous to Article III. As I note in my comment below, federal standing requirements have been quite flexible and might allow a fairly substantial set of plaintiffs, including activist groups like HOME, a plaintiff in Havens Realty v. Coleman with no more direct injury from housing discrimination than an abortion activist group would have from abortion. However, I doubt they would be flexible enough to permit a party to sue itself.

      1. Obviously it wouldn’t literally be Planned Parenthood the corporate entity. But I’ve yet to see anyone explain why an individual member couldn’t bring a test case.

    3. What good is a test case? There’s already clear precedent that says that the law is unconstitutional.

  3. I will quibble with this assertion:

    >>The typical “private attorney general” enforces private rights, seeks to remedy personal injuries, and must show a personal injury to proceed; the public benefit of the judicial remedy is an incident of that private relief. SB8 plaintiffs have suffered no personal injury and achieve no personal remedy, beyond the ideological goal of stopping abortions. <<

    That comes from constitutional overlay, not statutory specification.

    Here's the Clean Water Act, 33 U.S.C. § 1365(a):
    "any citizen may commence a civil action on his own behalf—"

    Here's the Clean Air Act, 42 U.S.C § 7604(a):
    "any person may commence a civil action on his own behalf"

    Here's SB8, Sec. 171.208(a). (a) Any person, … may bring a civil action against any person"

    And in case you want to rest everything on the text of "on his own behalf," compare CWA and CAA with the regulation implementing citizen suits for the ADA, 28 CFR § 36.501(a):
    "Any person //who is being subjected to discrimination// on the basis of disability in violation of the Act … may institute a civil action for preventive relief"

    Point being, Congress passed laws seeking to vindicate public rights through private enforcement. Courts said you can't do that, because Constitution.
    We don't know yet if Texas courts will say private plaintiffs without a personal injury can sue under SB8, or whether they will respond like Federal courts.
    Which means it's inappropriate for federal courts to weigh in on the issue until that issue of state law is resolved. See Pennhurst.

    1. And Havens Realty is a key case (there are others) where the Supreme Court said that doing this is constitutional.

  4. It seems to me that at least some parties suing under SB8 would have standing under both ordinary federal Article III standing rules and the Texas Constitution’s counterpart.

    First, any reasonably close relative of the fetus – anyone who might plausibly file a custody or wrongful death suit in the case of a child – would have standing to sue. This could imclude a substantial set of relatives.

    Second, the Supreme Court has recognized a very expansive conception of organizational standing, in which activist groups are injured by a violation of law because but for it they could have been devoting their resources to something else.

    Just as the existence of housing discrimination impaired the anti-housing-discrimination group HOME’s ability to provide counseling and other services by forcing it to devote its resources to filing housing discrimination suits, as the Supreme Court found in Havens Realty v. Coleman, so the existence of abortion impairs anti-abortion groups’ ability to provide counseling and other services by forcing them to devote resources to filing abortion suits.

    I don’t see how you can accept that HOME had standing in Havens Realty without also accepting that anti-abortion groups have standing here. The basis for standing seems exactly the same.

    Far from being unprecedented, cases like Havens Realty show that very flexible conceptions of standing have been accepted for a rather long time, at least when courts have believed in the cause the law advances really, really strongly. Havens Realty easily covers this. If one is willing to be honest and treat standing principles the same whether you like the underlying law or not, existing Supreme Court precedent provides a fairly wide set of potential plaintiffs with standing.

    1. “Second, the Supreme Court has recognized a very expansive conception of organizational standing, in which activist groups are injured by a violation of law because but for it they could have been devoting their resources to something else.”

      I had to check that statement and it seems legit.

      “As the foregoing illustrates, “direct stake” organizational standing knows three variations. In other words, an organization seeking standing on its own behalf can show injury in three ways. First—and most obviously—an economic injury suffices. Because standing is so obvious under in this category it is seldom litigated.

      Second, an organization might have standing regardless economic injury where it can show it was prohibited from engaging in lawful activity. That explains MHDC where, even removing the financial basis for the construction, the organization nonetheless suffered injury.

      Third, an organization might have standing where it can show its activities were unraveled by illegal activity—where it has performed lawful activity which the defendant subsequently nullifies or at least partially unwinds. That explains Havens, where the defendants’ unlawful conduct cancelled the organization’s philanthropic counseling.”

  5. “Providers have ceased performing post-heartbeat abortions, so no potential plaintiff has anything on which to base an SB8 claim.”

    Oh, no!

    1. I love it when a plan comes together.

      1. Enjoy your moment of perceived victory, clingers.

        Better Americans will impose the reckoning soon enough, and even you will return to recognizing that you are lifelong losers in modern America.

        And be nicer, or the culture war’s victors might stop being so magnanimous toward the casualties.

        1. So tomorrow belongs to you, does it, Kirkland?

      2. I read that 1,000 babies have not been aborted since the law. So, that’s roughly 600 new democrat voters in about 18 years. In time, Texas will turn blue.

        Aw, who am I kidding, it not the votes but who counts them.

  6. Here’s a crazy thought – why can’t the state of Texas bring suit in the U. S. Supreme Court against the United States and the various “providers,” seeking an injunction against *them* so they can’t challenge SB 8?

    Before you flip out, recall that the United States has sued Texas in the district court to *block* SB 8, so why can’t Texas go straight to the top (the Supreme Court has jurisdiction in cases where a state is a party) and turn the tables on all these “pre-enforcement actions”?

    Are we to say that only the challengers of SB 8 can be creative? Can’t Texas challenge the challengers – and get a ruling on the continued viability of Roe v. Wade, while they’re at it?

    1. Setting aside any issues with the viability of this strategy, the fact that Texas structured the law in the first place would suggest that it’s not particularly excited about litigating the issue before any tribunal.

      1. Well, no, they’re actually very excited about litigating the issue before one tribunal in particular. The catch is that they have to get past all the lower ones without losing in such a way that the next step up the chain won’t refuse to take the appeal.


    The typical “private attorney general” enforces private rights, seeks to remedy personal injuries, and must show a personal injury to proceed; the public benefit of the judicial remedy is an incident of that private relief.

    Not always

    Another example of the “private attorney general” provisions is the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO allows average citizens (private attorneys general) to sue those organizations that commit mail and wire fraud as part of their criminal enterprise. To date, there are over 60 federal statutes that encourage private enforcement by allowing prevailing plaintiffs to collect attorney’s fees.

    So instead of compensation for injuries, these private AGs are motivated by earning fees, and federal statutes encourage that.

    1. You’re mistaken. A civil RICO claim requires that the plaintiff prove personal damages as a result of the conspiracy.

  8. Still wondering about removability as a fast-track to federal review (as I don’t think this statute is doing the pro-life interest any good in the long run). Allege eight (or six or seven, depending on the Lone Star lodestar) instances for a sufficient amount in controversy, single deft, sufficient Article III injury under qui tam theory (it’s a bit more than buying an airline ticket to look at a species), and remove to the sanity of the federal system at the deft’s principal place of business.

    Or, in the situation above, counterclaim on the relator (first instance, but not beyond the pale) for sufficient amount in controversy, and do same. (Assuming plausible basis for out of state domicile.)

    Just a thought. Not legal advice, or even probably a very good idea.

    Mr. D.

  9. The final solution for the pro choice movement is to just get a constitutional amendment passed legalizing abortion on demand until birth. What is stopping them?

    1. The fact that abortion is wildly unpopular after the 1st trimester, and even in the 1st public opinion favored outlawing elective abortions.

      No amendment that remotely copied the results of Roe would have the remotest chance of ratification, it would be a political death sentence for most politicians to even vote it out of Congress.

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