The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.