The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Michael and Chantell Sackett purchased a small lot upon which they planned to build a house. As they began work on the parcel, they received an Administrative Compliance Order (ACO) from the Environmental Protection Agency (EPA) ordering them to stop work and restore the parcel to its prior, undeveloped condition. Failure to comply, the EPA declared, would expose them to fines of up to $65,000 per day—$32,500 each
for violating the Clean Water Act (CWA) and the ACO. The Sacketts sought to challenge the EPA's order, as they did not believe their parcel was subject to federal regulation under the CWA, but they were told they would have to wait. In the EPA's view, the ACO was not subject to judicial review. If the Sackets wanted to contest EPA's jurisdiction, they would have to wait for the EPA to initiate an enforcement action against them.
According to the EPA, the Sacketts faced a choice: Cease using their own property or continue to develop the parcel and expose themselves to the risk to tens—if not hundreds—of thousands of dollars in fines. Each day of noncompliance would incur more fines, and the EPA could wait years to initiate an enforcement action.
The conundrum faced by the Sacketts is not unlike that faced by abortion providers in Texas under S.B. 8. The law prohibits providing abortions after six-weeks, and subjects violators to substantial penalties, yet because of the law's structure, abortion providers have no clear way to challenge the prohibition unless and until it is enforced against them. As a consequence, it is difficult, if not impossible, for abortion providers to challenge the law's constitutionality without exposing themselves to substantial financial and legal risk.
In each case, the choice is between complying with a potentially unlawful command, or refusing to comply at the risk of ruinous financial penalties. In each case, pre-enforcement judicial review appears unavailable. Seeking a day in court to challenge the government's dictate would only come at great financial risk.
The Sacketts ultimately got their day in court. They argued that the CWA did not bar pre-enforcement review of an ACO and, in the alternative, that a prohibition on pre-enforcement judicial review of the ACO would violate Due Process. The Supreme Court ultimately agreed with the Sacketts, but not on constitutional grounds. Rather, the Court concluded that the ACO was a final agency action subject to judicial review, and therefore CWA actually afforded the Sacketts an opportunity to challenge the ACO before racking up daily fines for noncompliance. The question of whether imposing penalties for failing to comply with an unchallengeable ACO would violate due process, was left undecided.
Unlike the CWA, there is no statutory ground upon which abortion providers can seek review of Texas S.B.8's prohibitions. There is no alternative interpretation that would enable abortion providers to seek pre-enforcement review (though it may be possible for the federal government to file suit, as is being claimed in current litigation).
Just as some who support extensive wetland regulation thought it was unfair and unjust to expose the Sacketts to penalties while denying them their day in court, some opponents of abortion should be concerned that S.B.8's structure exhibits some of the same pathologies that (rightfully) concern conservative critics of the administrative state. Noble ends should not be pursued through dastardly means.
The reality is that government entities often take actions in a way calculated to frustrate judicial review. If one is inclined to think this is a problem (and I do) then it should be a problem without regard for the subject matter. Just as environmental protection should not require denying landowners the right to challenge regulatory restrictions on their land, opposition to abortion should not require denying abortion providers or pregnant women the opportunity to contest the lawfulness of restrictions on abortion.