The Procedural Puzzles of SB8, Part IV: Test Cases for Defensive State-Court Litigation


Our second and third posts explained the limited offensive actions available to providers and advocates. This will likely require providers and advocates to raise their constitutional challenges to SB8 in a defensive posture in state court after being sued by a claimant for violating SB8. But providers so far have not performed or announced an intent to perform a prohibited post-fetal-heartbeat abortion that could trigger suit.

SB8's civil action is available against any provider or advocate who (1) performs or induces a prohibited abortion, (2) aids or abets a prohibited abortion, or (3) intends to perform or aid a prohibited abortion. If an actual abortion is performed or assisted, the successful SB8 claimant can recover the statutory damage award of $10,000 or more, injunctive relief, and attorney's fees and costs. But once the defendant demonstrates that the full statutory damages have been paid for any abortion, "a court may not award" further relief regarding that specific abortion. If instead the provider or advocate merely "intends to" engage in prohibited conduct, damages are not available; the successful claimant is limited to an award of injunctive relief and costs and attorney's fees.

Two possible mechanisms exist to create a test case. First, a provider could announce an intent to perform, and an advocate could announce an intent to aid or abet, a prohibited abortion. Although statutory damages are not available, the provider and advocate could confront multiple simultaneous suits across the state seeking injunctive relief. In addition to the defense costs, the provider or advocate might be liable for multiple awards of attorney's fees and costs to successful SB8 claimants.

The other mechanism is to perform one—and only one—prohibited abortion without indicating any intent to continue to do so. Although that triggers the statutory damage award of $10,000 or more if an SB8 claimant prevails, no subsequent court may award additional relief with respect to that abortion. Even if there are multiple suits filed, the provider or advocate will only be subject to one award of damages, attorney's fees, and costs. This limitation on recovery to a single claimant may result in fewer copycat suits from other ideological opponents of abortion.

A potential risk, though, in performing or aiding a single abortion is that a suit may not be filed. Ideological opponents to abortion may prefer to wait until closer to the expiration of the four-year statute of limitations rather than participate in a test case challenging the constitutionality of SB8 shortly after it went into effect.

To ensure suit is filed, providers and advocates can take advantage of SB8 authorizing "any person" to sue. The suit does not have to be filed by an opponent of abortion; the claimant merely must seek the remedies against the provider or advocate authorized by the statute to sue under SB8. This allows providers and advocates to arrange litigation to be filed against them, even by parties sympathetic to abortion rights. It might be advantageous to ensure several suits are filed, with the providers and advocates pursuing different offensive and defensive litigation strategies to determine which, if any, are successful. The offensive litigation theory described in our third post could be pursued in one of the cases, while the various constitutional defenses we describe in our next post could be pursued in other cases.

Whether the SB8 litigation is arranged or brought by ideological opponents of abortion, providers and advocates will be in a defensive posture in state court. Although defendants have a right to remove state-court lawsuits to federal district court when the state-court plaintiff could have filed the action in federal court and the federal court would have had jurisdiction, removal of an SB8 suit is impossible.

A defendant can remove actions that arise under the Constitution, laws, or treaties of the United States. The central defense for advocates and providers is that the fetal-heartbeat provision violates Fourteenth Amendment due process. But federal-question jurisdiction adheres to the "well-pleaded complaint" rule, under which jurisdiction exists only if the federal issue enters the case as part of the plaintiff's well-pleaded complaint; an anticipated federal defense to a state claim is insufficient to establish jurisdiction or to make the case removable. Although it is obvious that the providers and advocates will raise the constitutional defects in SB8 and the constitutional validity of SB8 will determine the outcome, SB8 actions are not within the district court's original jurisdiction and are not removable as arising under the Constitution, laws, or treaties of the United States.

A second basis for removal is when a civil action is between citizens of different states where the amount in controversy exceeds $ 75,000. This requires complete diversity—no party from the same state as an adverse party. Complete diversity is unlikely because the probable plaintiffs are citizens of Texas, as are at least some of the probable defendants, such as doctors, nurses, and providers operating in the state. Moreover, the presence of one Texas defendant bars removal on diversity grounds under the forum-defendant rule. 28 U.S.C. § 1441(b)(2). A plaintiff—who likely wants to be in state court—can bar diversity removal by including one single Texas defendant.

A final—and insurmountable—hurdle to removal is lack of standing. SB8 authorizes "any person" to bring a civil action. That person need not have any connection to a particular post-heartbeat abortion or to a particular woman who sought or considered a post-heartbeat abortion. He need not have suffered any physical, monetary, or other personal injury. It is enough that he wants to file suit and obtain the statutory relief awarded.

Such plaintiffs lack standing in federal district court. Even where a legislature creates a cause of action and authorizes a person to sue, federal plaintiffs must show that they suffered an "injury in fact," meaning some personal injury, whether tangible or intangible, analogous to recognized common law injuries. A court lacks jurisdiction to hear a claim based on a mere statutory violation, absent some other personal harm. And ideological objections are insufficient.

SB8 actions recall the California litigation in Kasky v. Nike. California's unfair-competition law authorized "any person acting for the interests of … the general public" to bring an action, regardless of whether the plaintiff was injured or had a private right of action for the specific violation; this cause of action was as broad as the one in SB8, although the California law retained public enforcement.  The plaintiff, a politically active consumer advocate, sued Nike in state court for false advertising, based on Nike press releases responding to reports about factory working conditions; Nike defended by arguing that their statements, even if false, were protected by the First Amendment. The California Supreme Court reversed dismissal of the action, holding that Nike's press releases were commercial speech and subject to regulation under consumer-protection laws if false.

The Supreme Court of the United States granted certiorari, then dismissed as improvidently granted, dumping what many anticipated would produce a significant First Amendment ruling. Justice Stevens, concurring in the dismissal, and Justice Breyer, dissenting from the dismissal, agreed that the plaintiff lacked Article III standing to obtain original jurisdiction in federal court because he had not suffered any personal injury beyond the statutory authorization. The action could not have been litigated in federal district court, whether originally or on removal. Like the plaintiff in Kasky, SB8 plaintiffs could not file these actions in federal court (not that they would want to) and defendants cannot remove them, since removal requires an action that could have been filed in federal court.

Providers and advocates will thus have to pursue their defensive challenges in state court. The defenses available to them there will be the subject of our next post.

NEXT: A Good Statement on Faculty Speech from Syracuse

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  1. As an attorney with an anti-abortion bias, I think the Supreme Court should ultimately give SB-8 very negative treatment. This looks like a “too clever by half” attempt to game the system to avoid a rule. I oppose this approach wherever I see it; there risk of unintended consequences is too high.

    We have lots of brilliant people, many of them lawyers, who try to find complicated exceptions to rules they don’t like. I think that we should pass laws and create policy the hard way – through legislative action. Yes, Roe v. Wade was imposed from above in a rather abusive way, but let’s find non-abusive ways to oppose it.

    1. “let’s find non-abusive ways to oppose it”

      Let’s not. All is fair in war.

      1. One would think a culture war casualty would think twice before granting that point to the victors, his betters.

        But I guess you don’t wind up a superstitious, stale-thinking, bigoted clinger in Can’t-Keep-Up, Ohio with sound judgment, solid education, and good character.

      2. The “war” is on one side only – the choicers who are waging war on the unborn.

        Texas passed a law which has reduced abortion. People will be born who in the absence of the law would have been killed.

        And it was done through the legislative process, which is as non-extreme as you can imagine.

    2. Republicans will regret this victory. I am enjoying the frustration of the feminist enemy. However, it will model vigilante laws in many other legal subjects. It will birth millions of Democrat voters with their social pathologies. It will be used against Republican causes.

    3. You can’t give SB-8 “very negative treatment” without applying Roe v. Wade, and if you support Roe v. Wade, you don’t have an “anti-abortion bias.”

      If you support the application of Roe v. Wade, you believe that the unborn have no rights which the powerful are bound to respect.

      “I think that we should pass laws and create policy the hard way – through legislative action.”

      And what, precisely, did the Texas legislature just do?

  2. Suppose the Texas Supreme Court upholds the $10,000 statutory damage award, declining to apply Roe v. Wade (or claiming for whatever reason that it doesn’t apply). Can the defendant petition for cert to the Supreme Court in a case that could not have been filed in federal court?

    1. If there is a money judgment upheld on appeal I think the Supreme Court could take the case because the petitioning party has claimed a federal constitutional harm. If the Texas Supreme Court rules against the law I think that is the final word if the plaintiff does not have federal standing.

      1. “If the Texas Supreme Court rules against the law I think that is the final word if the plaintiff does not have federal standing.”

        It depends on the basis of the ruling against SB8 and has nothing to do with the posture of the plaintiff.

        If the Texas State Supreme court rules that SB8 violates the Federal constitution, that would be appealable to SCOTUS.

        On the other hand, if the Texas State Supreme Court rules that SB8 is void because it violates the Texas state constitution, that would be the end of it.

    2. There would be standing for appealing to SCOTUS, because the state-court judgment causes an injury that can be remedied on appellate review. See ASARCO v. Kadish and Nike v. Kasky.

  3. Have the (alleged) father of the aborted fetus sue in a federal court where a sympathetic judge wants to rule on the law. His interest is distinct from the public’s. While that doesn’t give him extra rights under the state law it allows a plausible claim of an individualized injury to meet federal standing rules.

  4. I am not sure obviously collusive litigation will work. In any event, a plaintiff who loses in the trial court doesn’t have to appeal and trial court decisions are not binding precedent.

  5. Maybe the best way to rub the clingers’ noses is this one is for an advanced state to enact a law that provides bounties in the contexts of carrying a gun outside the home, practicing law as a Federalist Society member (or hiring a Federalist Society member to provide legal services), engaging in faith-healing, or engaging in racist conduct.

    1. How about vigilante litigation against lawyers who file claims without merit? That would be a good one.

  6. If, as noted by the authors that “the provider or advocate will only be subject to one award of damages, attorney’s fees, and costs,” and “any person” may bring the suit, it seems the provider could sue himself/herself. Any damages, costs, etc. would result in a nearly zero net. Or perhaps PP could sue their own providers, then reimburse them for the costs.

    I’m not a lawyer and have no legal training (though I did stay at a Holiday Inn Express once), so I’m not sure if one is allowed to sue himself/herself.

    1. The net effect would be a show trial for every abortion. That would dramatically increase the costs.

      1. Nonetheless. Could it be a workaround?

    2. Suud. The law is your chattel. Any lawyer who criticizes a civilian for not knowing the law is a scumbag rent seeking, and deserves an ass kicking because of his self dealt legal immunities. Formal logic supports the ass kicking and must be honored in any court.

  7. The approach urged by Wasserman and Rhodes seems gratuitously narrow. It predicates response to S.B. 8 on a notion that it must come as a defense of abortion rights, or perhaps a defense of the right to privacy. The posture taken by Texas with S.B. 8 is manifestly far broader than that. It implicates all rights, and adds legislative and administrative sleight of hand to evade both judicial and political accountability.

    That broader posture ought to be the focus of an attack, not a defense. And the attack ought to be federal.

    The place to begin is with Article IV of the federal Constitution, which guarantees a republican form of government for all the states. S.B. 8 fairly obviously attempts, and probably succeeds, at elimination the political accountability which is indispensable for a republican form of govrernment.

    Let the government of the United States represent the sovereign People as a plaintiff, to sue Texas and the people of Texas over that. Get a decision that rules S.B. 8 void, as facially unconstitutional for denying a republican form of government. Take care in structuring the case to avoid naming individualized plaintiffs and defendants.

    With a decision which declares S.B. 8 void for a facial violation of the U.S. Constitution, the problems of this kind of attack on privacy rights, and abortion rights, and all other rights, will be gone. And the more important, larger issue of the attempt by Texas to game judicial accountability will go with them.

    1. The legislature passed SB8, and the legislature is accountable to the people. A future legislature can repeal SB8. I’m not buying that the government has avoided all accountability.

      I agree with you that the law is wrong-headed, but I think your argument is a non-starter.

    2. Also, courts don’t ‘void’ laws, they prohibit the enforcement of them.

      1. No. courts repeal laws. Your statement is just lawyer nitpicking bullshit. It deserves an ass kicking for its lying bad faith.

    3. How do you deal with the Supreme Court’s decision in Havens Realty v. coleman, where the Supreme Court found that an activist organization had standing because but for the defendants’ illegal activity, it could have spent its time doing other things rather than devoting its resources to suing defendents.

      It seems to me that that case upheld laws with enforcement mechanisms not all that materially different from this one.

      The Texas Constitution imposes a standing requirement similar to Article III, so the set of plaintiffs would be limited to those with constitutional standing.

      And it seems to me that an anti-abortion organization would have exactly the same basis for standing as the anti housing discrimination organization HOME did in Havens Realty. But for the existence of abortion, it could be devoting its resources to counseling and other activities. The existence of abortion disrupts its activities and compels it to devote rwsources to fighting it, exactly as the existence of housing discrimination disrupted HOME’s activities and compelled it to devote resources to filing housing discrimination suits.

  8. Squirrelloid, legislators do not do law enforcement. Under S.B 8, the people doing the law enforcement do not feel any political accountability, and are not meant to. The legislature aimed to make those self-appointed law enforcers permanently unaccountable. That is not a feature of a Republican form of government. A republican form of government needs politically accountable law enforcement continuously, not just after an interval of non-republican government between elections. The notion that the legislature would at some future time return republican government to Texas is speculative. What is there now is a federal Constitutional violation.

    1. What exactly in SB8 would immunize would be plaintiffs from sanctions by the court?

      1. Slyfield, did you notice I mentioned specifically political accountability? How would that reach or influence self-appointed enforcers under S.B. 8?

      2. 171.208(i)

        Notwithstanding any other law, a court may not award costs or attorney’s fees under the Texas Rules of Civil Procedure or any other rule adopted by the supreme court under Section 22.004, Government Code, to a defendant in an action brought under this section.

    2. Why should that particular political accountability be necessary to be a Republic, when the laws themselves are politically accountable?

      Where’s your specific definition of a Republic, anyway, so we can test to see what is and isn’t a Republic? (Not something you just made up in your head, either – some reputable source that most people could agree with).

    3. Also, how is law enforcement generally ‘politically accountable’. Are police officers a violation of ‘Republican Government’, because they are hired and not elected?

  9. “The other mechanism is to perform one—and only one—prohibited abortion without indicating any intent to continue to do so.”

    And how do they select who is going to be killed? Pick their medical charts from a drum and abort the loser?

    1. Since the underlying idea is for pro-abortion parties to find a way to challenge the law, they would find a volunteer, a woman who wants an abortion, just as lawyers often do when they are seeking to file test cases. All the participants in the abortion would also be volunteers. They’d get some big donor backed organization or other to indemnify the volunteers in case they lost as well as defray their legal fees.

  10. Moving a comment out that I had put on a subthread.

    How do you deal with Havens Realty, which held that an activist organization had Article III standing to sue because but for the defendent’s illegal activity, it could have been devoting its resources to something else?

    It seems to me that the existence of abortion harms an anti-abortion organization in essentially the same way that the existence of housing discrimination harmed the anti-housing-discrimation organization HOME in Havens Realty.

    The Texas Constitution imposes standing requirements similar to Article III. Havens Realty upheld a federal law that permitted anyone with Article III standing to sue, and interpreted standing very broadly. This seems no different.

    So it seems to me that far from being unprecedented, this law has a substantial line of Supreme Court precedent behind its enforcement mechanism.

    Over the last half century and more, many federal laws – qui tam laws, discrimination laws, environmental laws, many others — created exactly the kind of private attorneys general that this law creates, permitting anyone who could show standing to the limits of Article III to sue. And there is a series of Supreme Court decisions in these cases, not just Havens Realty, upholding the private attorneys general provisions and interpreting the standing limits very liberally.

    1. As a matter of my own opinion, I think that the kind of organizational standing accepted in Havens Realty was too broad and there’s a good argument for overruling it and interpreting standing more narrowly. And perhaps someone can come up with an argument distinguishing likely organizational plaintiffs in a suit under SB 8 from HOME in Havens Reality.

      But simply claiming it’s unprecedented doesn’t cut it. The State of Texas is entitled to rely on precedent like Havens Realty whether I (or you) like it or not. And serious arguments on this issue have to deal with that precedent and at least try to make some sort of argument that this is different, rather than getting all worked up about sauce for the goose being applied to the gander.

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