More on Standing
To add to my growing number of posts on this subject, I would draw attention to this piece from theTexas Tribune: Texas abortion law a “radical expansion” of who can sue whom, and an about-face for Republicans on civil lawsuits.
Republican lawmakers’ move to ban nearly all abortions in Texas was accomplished through a huge, unprecedented expansion of who can bring a lawsuit against someone else: Under the law, anyone can sue anyone who performs, aids or intends to aid in an abortion — regardless of whether they have a personal stake in the abortion performed.
“It’s wide open,” said David Coale, an appellate lawyer in Texas. “That is a radical expansion of the concept of standing.”
The expansion has far-reaching legal implications, legal experts say, by challenging the very notion of what a court is for and emboldening civilians to enforce law, a duty traditionally left to the government. It’s also a reversal by Texas Republicans on tort law, in which they have typically sought to limit the ability to sue, not expand it.
On that last point, which is the least of all of this, I will say that I am old enough to remember when tort reform (to limit lawsuits) was a huge drive for the GOP. Back in the day, stopping “frivolous lawsuits” was a major goal; now the goal seems to be moving the enforcement of the law into civil proceedings. (But, that movement was mostly aimed to protect businesses from class-action suits, so the contradiction here is less than it may seem since this expansion is aimed at individuals). And, of course, the notion that politicians and political parties might change their views in such a fashion is not new, so a lot of that is just a case of “same as it ever was.”
The shift in the concept of standing, however, could transform the role of the courts.
Legal experts also told The Texas Tribune that the measure is part of an emerging trend in Republican-dominated governments that find it difficult to constitutionally prohibit cultural grievances. Instead, they empower civilians to sue for civil remedies.
Jon Michaels, a professor at UCLA Law, points to Tennessee, where students, teachers and employees of public schools can sue schools if they share a bathroom with a transgender person, as well as Florida, where student athletes can sue their school if it allows a transgender athlete to play.
“It’s a way of back-dooring and winking while constitutional violations are occurring,” Michaels said. “It is compromising democracy.”
SB8 goes further (which the dissenters on SCOTUS recognized):
Texas’ abortion law goes much further. Typically, in tort law, which is used to compensate people who have been injured, a person must have incurred some sort of personal harm in order to sue someone else. That’s the very nature of what a civil court is intended to remedy in such a case, several legal experts told the Tribune. Texas’ new abortion law, however, gives that privilege to anyone.
“They have standing because the Legislature gives it to them,” said John Seago, legislative director for Texas Right to Life. “You don’t have to be personally harmed.”
And that changes the whole concept of a civil suit.
Some, though, say the law cuts to the very nature of what a civil court is supposed to do: provide a remedy to a harmed party.
“There’s a sort of irreducible minimum that you have to have before you’re in court, just as a matter of how a court is defined,” Coale said. “And this goes way beyond that.”
The closest legal precedent for the law’s “vigilante” enforcement, as some have called it, is found in environmental law. The Clean Air Act and Clean Water Act allow civilians to sue the federal government when it fails to enforce the law. But even so, courts have narrowed those definitions over time, and the statute is limited. For example, an environmental group might bring a lawsuit but has to prove that one of its members was directly affected by the environmental harm.
Traditionally and generally speaking, said David Noll, a professor of law at Rutgers Law School, our society doesn’t want random people making decisions about whether or not a law is enforced.
“You vest those decisions in a district attorney or an attorney general, who is subject to ethics laws and looking out for the public interest,” he said. “SB 8 inverts that by putting private litigants who are motivated by ideological considerations into the position of a government prosecutor.”
In other words: law enforcement is normally left up to state officials, not random individuals or activist groups. That such basic practices are preferable to what SB8 unleashes should be obvious.
Of course, the goal is not to see a thousand lawsuits bloom. The goal is to scare providers away from engaging in abortion services in the first place because they fear being hauled into court and facing massive bills:
Seago, of Texas Right to Life, disagrees that a wave of lawsuits is coming, simply because abortion clinics have already canceled appointments. Plus, he said, it’s “not a winning strategy” to flood a defendant with lawsuits, for risk that a judge might dismiss them as frivolous.
“None of this is relevant if they comply with the law, and that was the goal,” Seago said. “Some of the rhetoric around this bill acts as if the judiciary is not going to function. … I think we can have more faith in our judiciary than assuming they’re just going to be pawns of the pro-life movement.”
Still, even getting a lawsuit dismissed can be burdensome and, at times, require expensive lawyers. The abortion law specifically bans plaintiffs from being ordered to pay defendants’ legal fees; opponents fear that the risk of filing a baseless lawsuit is low for plaintiffs and that defending from many lawsuits — even if they are dismissed — could still be financially damaging to a clinic or doctor.
I can’t stress enough that what is going on here is a ban that would normally be implemented via the criminal code is being enforced by civil actions. And, one should note, this is being done to undercut a procedure that is legal under federal court rulings. The pretzel here twists expansive standing with the ability of plaintiffs to receive financial awards as a way to stop providers from engaging in an otherwise legal activity. No doubt abortion opponents find this clever (and, it is–it is certainly creative), but a dispassionate assessment should lead one to see the way in which it is subverting the legal system to get around Supreme Court rulings on a process the Court has deemed as constitutionally protected. If the threat of harassing lawsuits can empower a state to block rights and privileges that are otherwise deemed constitutional, then we have a true subversion of the legal order at play here.
The question of standing, or who is allowed to sue, will be taken up by those state courts as well, legal experts said. Coale said there are serious questions about whether the Texas constitution requires someone to have standing to bring a lawsuit or if indeed the Legislature’s protection will be enough to allow people to bring what lawyers call “generalized grievances” — harms that weren’t committed against them personally.
The “open question” is whether standing is something that courts consider only to figure out who is allowed to sue under any given law or if, as Coale put it, standing is something that is so central to the nature of what a court is that it constrains the Legislature. Either way, he said, Texas is in “uncharted water.”
“The concept of a private attorney general is very well known,” he said, “but the concept of this [type of] private attorney general is way out there. I cannot think of an analogue to it.”
If this legal mechanism is allowed to persist, it will grow and in a way that affects issues across the political/policy spectrum. This is not just about abortion.