On Civil Enforcement and Bounties

Regardless of one's views on abortion, the enforcement provision in the new Texas law should be concerning.

This post is not about abortion nor abortion rights themselves. I am stating that upfront because I am not looking for a conversation about abortion rights themselves from this post. And I am not trying to dismiss the significance of the topic, but that I think we need to focus on the enforcement provisions in this law as they strike me as concerning. I have been hearing a lot about the enforcement mechanism in the law that caused me puzzlement to the point that I wasn’t sure whether what was being reported was accurate. So, I went and read the law.

Turns out, yes, the reporting is accurate and the legal mechanisms unleashed by this law (and endorsed by SCOTUS at least for now) have some serious implications.

Here are some key provisions as it pertains to enforcement:

Sec. 171.207. LIMITATIONS ON PUBLIC ENFORCEMENT. (a) Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative
officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.

[…]

Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a) Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

(1) performs or induces an abortion in violation of this subchapter;
(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or
(3) intends to engage in the conduct described by Subdivision (1) or (2).

Let’s just pause and consider the underlying logic here: the State of Texas is creating a new paradigm for enforcing a law by empowering anyone outside of state and local government (“any person”) to sue a specific set of persons (abortion providers and those who enable an abortion to take place) in court.

The clear purpose is to create sufficient concern about the crushing burden of such suits on a given person or entity that they will not engage in an activity that is otherwise legal under existing SCOTUS rulings. Such a law empowers activists who are not directly impacted by the actions of specific private individuals to nonetheless entangle those individuals in a civil proceeding (with all the expense and hassle implied by such an action). Further, the suit can be filed in the county of the claimant. That fact creates an additional burden on potential defendants. For an extreme example, let’s say an activist living in Dalhart (in Dallam County in the northwest corner of the panhandle) sued someone in Brownsville in the far southeastern tip of the state. That is an over twelve-hour drive with all of the costs associated with a trip to court that far from home.

If the claimant wins, they are awarded at least $10,000 per abortion plus attorney’s fees. To call this a bounty, as some in the press have done, is not unfair.

In my view, this novel (as far as I am aware) process turns the nature of civil and criminal law on its head. Here we have the State of Texas wanting to create a generalized ban against a specific action, in this case, abortion, but because of the prevailing rulings in Roe and Casey they can’t. So, they decide to unleash absolutely anybody who wants to be the enforcement mechanism and creates a climate under which the likelihood of the claimant winning the bounty is exceptionally high.

In simple terms, criminal law is the realm by which the state can impose public order by curtailing a set of activities by citizens in such a way that the power of that state (i.e., police) can be deployed to detain those who have violated that public order and the state can seek to extract punishment to include loss of liberty. There is a reason that the government and its citizens (e.g., “The People of the State of Texas”) are the plaintiff in criminal cases and not the victims of crimes.

Civil law is the realm in which specific persons and groups can claim damages from other specific persons and groups. But there usually has to be some kind of standing (i.e., personal stake) to be involved. I can sue you for recklessly letting your car roll into my house and seek financial recompense for your actions, but I can’t just read in the paper that some guy on the other side of the state let his car roll into someone else’s house and sue him and gain an award.

Even in class action suits that involved large numbers of plaintiffs, the persons suing as a class have to qualify as a member of that class, meaning that they did personally suffer some of the harm being sued over.

The State of Texas is undercutting what seems to me be a foundational element of civil lawsuits, the idea that the two parties involved are, well, involved in the claims being contested. This law appears to me to create a definition of standing that strains the concept to a breaking point.

I recognize that I am not a lawyer, so perhaps there is some more esoteric issue here that I am missing, but as someone who studies the ways in which rules of governance are designed and deployed this all strikes me as highly problematic.

What next? Will a state whose legislature wants gun control pass a law that states that anyone, anywhere can file a civil suit in one of their counties against a gun manufacturer if one of their guns is used in a mass shooting? What if the award for such a suit is $10 million? Or $1 billion?

What if it has this provision (from the Texas law in question) that the following is not a defense “a defendant’s belief that the requirements of this subchapter are unconstitutional or were unconstitutional”?

The potential for this approach is significant and has the potential to be chaotic.

Can any right or federal law be subverted by making it a cause for civil action in a given state?

The State of Texas has not, in a technical sense, made abortion illegal. What they have done is create a deterrent against its citizens from exercising what is otherwise legal by empowering anyone and everyone to use a lawsuit to attack the infrastructure of that activity (note: the woman getting the abortion is not targetted, but the provider is, as is the person paying, as well as the person transporting, etc.).

Again, setting aside one’s views of the specific subject of abortion, it is utterly bizarre to me that five members of the Court were willing to allow the enforcement mechanism in question to stand (save, of course, that they are clearly acting from an outcomes-based jurisprudence). At a bare minimum, this law, even if the Court were to find it constitutional, deserves a full hearing, and I would argue one before it was put into effect. No doubt, the law will have its days in court (lawsuits have already started), but it still strikes me as profoundly irresponsible to unleash it into the wild at this stage of the process.

A key conservative principle is supposed to be concern about how innovation can lead to unintended consequences, and therefore one should treat lightly and cautiously when deploying innovative practices. Well, that is out the window here in pursuit of a singular goal. But, of course, stare decisis and a variety of other conservative principles were also tossed, so not surprised about a lack of concern about unintended consequences.

Update: I made some minor edits to the first paragraph and added another short paragraph at the beginning of the piece to correct some redundant language and to add a bit more clarity.

FILED UNDER: Law and the Courts, Supreme Court, U.S. Constitution, , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. George says:

    I wonder if the same mechanism can be used to in effect outlaw gun ownership? If so, I wonder if conservatives will change their minds about the mechanism.

    Imagine every private citizen in say California or New York being allowed to sue someone for owning a gun.

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  2. Tony W says:

    @George: I saw a similar sentiment expressed yesterday about mask wearing.

    “I saw somebody endangering the public by not wearing a mask!”

    One wonders if the SCOTUS would have intervened in that instance.

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  3. Mister Bluster says:

    @Tony W:..“I saw somebody endangering the public by not wearing a mask!”

    I saw someone endangering the public by exceeding the posted speed limit and driving recklessly.*

    The possibilities are endless.

    *I am quoting myself.

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  4. Mister Bluster says:

    test to call up EDIT key.

    Reloaded page about 10 times and there it is!

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  5. Lounsbury says:

    Really what the OP highlights should be understood by any sane person to be a step toward madness.

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  6. Michael Cain says:

    @George:

    Imagine every private citizen in say California or New York being allowed to sue someone for owning a gun.

    Texas has very carefully not allowed suing a woman for having an abortion, only suing the persons who performed/induced the abortion or aided the woman in obtaining the abortion (insurers would seem to be included here). The gun analogy would seem to be suing someone over selling the gun (or presumably, giving it as a gift).

    I will be interested in seeing how such a civil case establishes that the abortion occurred without violating federal HIPAA laws.

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  7. drj says:

    When someone shows you who they are, believe them.

    From which follows that SCOTUS, in its current make-up, is a lawless, corrupt court.

    There really is no way to sugarcoat this.

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  8. OzarkHillbilly says:

    This will not end well.

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  9. Lounsbury says:

    A very useful observation to draw attention to as this highlights something:

    A key conservative principle is supposed to be concern about how innovation can lead to unintended consequences, and therefore one should treat lightly and cautiously when deploying innovative practices.

    Indeed. And this law is the very picture of radicalism.

    The US Right has rather ceased to be Conservative or conservative. It has very much slide into unmoored reaction – I started calling them Right-Bolsheviks (I suppose that actually means fascist but fascist has been rather emptied of mooring on meaning) for this.

    @drj: Corrupt? That’s using corrupt as a smear-word. There’s no particular sign of court corruption. Unhinged and unmoored radicalism, yes. But not corruption in any proper sense. Lawless yes, as part of an unmoored ideological radicalism.

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  10. Paine says:

    “Key conservative principles” have an odd habit of being jettisoned out the window whenever they create the slightest obstruction to Republican rule.

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  11. Kathy says:

    @Michael Cain:

    This:

    When a fatal shooting occurs, everyone can sue: 1) the shooter, 2) the gun manufacturer, 3) whoever sold the gun, 4) if the gun was stolen, the prior owner for not securing their weapon.

    How about all the citizenry entitled to sue the police for using excessive force? Not just the department, but the officer involved, those who trained them, those who hired them, etc.?

    we can all think of many more. Suing people for spreading COVID, for not doing enough to prevent the spread, etc.

    IMO, that’s the fatal flaw of the Texas misogyny law. If you allow people with no standing to sue in cases of aiding an abortion, then you must allow it in plenty of other instances. Someday, everyone will be sued every 15 minutes.

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  12. Just nutha ignint cracker says:

    A key conservative principle is supposed to be concern about how innovation can lead to unintended consequences, and therefore one should treat lightly and cautiously when deploying innovative practices.

    Is it possible that conservatives, at least in Texas, should be reminded of this principle by having to answer a couple dozen (per conservative) of these complaints in various counties of Texas? Over the course of…say… 2 or 3 months? (Rinse and repeat as necessary?)

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  13. drj says:

    @Lounsbury:

    I suggest you look up the definition of “corrupt.” It has a somewhat broader meaning than “being open to bribery.”

    It also means “being in a depraved state,” “debased,” or “perverted.” All quite fitting descriptors, I would say.

    As someone who fancies the big words, I would have expected you to know this.

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  14. Just nutha ignint cracker says:

    @Lounsbury: [puts on Info Wars endorsed tin foil hat] So the stopping the reckless and genocidal slaughter of a million innocents a year is madness now? Is that what you’re saying? No! The madness is to sit by and let this holocaust continue unabated.
    [We now return you to your regularly scheduled comment thread.]

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  15. Lounsbury says:

    @drj: I am quite aware of dictionary definitions, and secondary meanings. However in a context where corruption in court systems means most typically bribery, the extended meaning is really merely using the word sloppily as a smear, where debased and perverted are rather more proper to what you actually mean.

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  16. Just nutha ignint cracker says:

    @Paine: The jettisoning of “key positions” is because the only “key position” of conservatives is “I will retain my position in the social/political power structure of the society by whatever means are necessary.” (And it hasn’t changed for as long as I’ve been alive, either. Longer, if I’m being honest.)

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  17. Gustopher says:

    The law evokes in me two separate and distinct emotions.

    Anger, for all the obvious reasons about the decline of America, etc.

    Glee, because we are going to get to watch a complete shit show.

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  18. Just nutha ignint cracker says:

    @Gustopher:

    Glee, because we are going to get to watch a complete shit show.

    Maybe, but it’s gonna take dozens of nuisance lawsuits against nuisance (Texas Republican) people to get a shit show worth watching. Liberals usually take the high road. How good will they be at going low?

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  19. Paine says:

    I find it hard to believe that the Democratic party had no idea this kind of law was in the pipeline. California or New York should have had a similar gun control law ready to rock as soon as SCOTUS embraced such an end run around individual rights. As always, the Dems are in reactive mode, always blindsided by GOP scumbaggery.

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  20. OzarkHillbilly says:

    @Kathy: When a fatal shooting occurs, everyone can sue: 1) the shooter, 2) the gun manufacturer, 3) whoever sold the gun, 4) if the gun was stolen, the prior owner for not securing their weapon.

    As I understand it, at least in some states firearm manufacturers and firearm dealers can not be held liable for what is done with a firearm after it has been sold.

    How about all the citizenry entitled to sue the police for using excessive force? Not just the department, but the officer involved, those who trained them, those who hired them, etc.?

    The officer involved is protected by qualified immunity in most cases.

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  21. JohnMcC says:

    As much as humanly possible, the religious rightwing of Texas is telling everyone NOT a rightwinger, we don’t want your kind here.

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  22. Roger says:

    This law is outrageous, but the mechanism of using private citizen enforcement of governmental interests and awarding attorney fees to prevailing plaintiffs but not to prevailing defendants is not new. Qui tam suits under the False Claims Act and environmental lawsuits are examples of the kinds of claims that are often brought, although certainly under more narrow circumstances than this statute seems to allow.

    Particularly in environmental suits, courts have used the case or controversy requirement to deny standing to plaintiffs even where the statute authorizing suit seemed to allow anyone to bring a claim without specifying that the plaintiff had to have personally suffered an injury. It will be interesting to see if (or, more likely, how) the standing analysis changes now that the subject is abortion.

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  23. JohnSF says:

    Thinking historically, it might have occurred to the Supremes that, whatever their views as to the delightful nuances of legalism, there are times when a purely legalistic decision is the political equivalent of throwing a match into a gunpowder store.
    Dredd Scott waves from the stands.
    Likewise Homer Plessy.

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  24. @Roger: I would appreciate some elaboration on this because it doesn’t seem the same in the sense that the Texas law allows bloody anybody to make a claim–it seems, based on very cursory reading, that the qui tam (because they have, as you note in your comment, far narrower bases).

    It seems to me that the standing under this new law is almost universal, save from Texas state and local officials. That’s simply incredible.

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  25. Roger says:

    @Steven L. Taylor:
    All sorts of statutes, both state and federal, authorize suit by private individuals to enforce governmental interests. Most require at least a nominal injury by the plaintiff in order to have standing, but some do not. For instance, 31 USC § 3730 of The False Claims Act authorizes civil actions by private persons without any requirement that they must have personally suffered the kind of personal injury necessary to have standing. The statute allows qui tam actions by, as you phrase it, “bloody anybody.”

    The Ninth Circuit recently discussed the standing issue in DiCarlo v. MoneyLion, Inc., 988 F.3d 1148 (9th Cir. 2021). Maybe they explain what I was trying to say better than I did.

    Standing to Sue. At its core, the standing-to-sue private attorney general is not employed by the state but still litigates the rights and interests of the public.

    Traditionally, individuals could challenge a government action only when that action harmed their own legal rights—for example, through prosecution, tortious acts, or a breach of contract. [citation omitted]. But that changed in the mid-twentieth century, when Congress and the Supreme Court transformed the relationship between rights and remedies in challenging government action. See Nelson, supra, at 712–25; see also Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) (“Where statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action.”).

    Various statutory schemes provided a cause of action for “aggrieved” individuals who had suffered a factual—but not a legal—injury from allegedly unlawful government action. [citation omitted]. The Supreme Court endorsed this regime, which granted standing to “private litigants … only as representatives of the public interest.” [citation omitted]. This was the “private Attorney General[ ].” Associated Indus. of N.Y. State v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943) (coining the term), vacated as moot, 320 U.S. 707, 707, 64 S.Ct. 74, 88 L.Ed. 414 (1943) (per curiam).

    California went a step further with some statutes. In those instances, the private attorney general did not need to suffer even a factual injury. See Californians for Disability Rts. v. Mervyn’s, LLC, 39 Cal.4th 223, 46 Cal.Rptr.3d 57, 138 P.3d 207, 209 (2006). More on this regime in a bit.

    To sum up, the standing-to-sue private attorney general is at its core a non-government actor who represents the public’s rights or interests in court.

    No doubt the Texas abortion statute can be distinguished from all of the many other private attorney general statutes that exist. I think it’s uniquely bad and my hope is that it quickly is held to be unconstitutional. My only point was that the concept of letting private citizens bring suit to do something the state won’t do isn’t new or unique.

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  26. Kurtz says:

    @Kathy:

    Someday, everyone will be sued every 15 minutes.

    The average will tick up to 20 minutes when Trump dies.

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  27. Just nutha ignint cracker says:

    @JohnSF: Forgive me for saying so, but I suspect that among our current batch of RWNJ Supremes, only Roberts is even capable of such thought process as would lead to the notion you’re suggesting.

    The balance seem to me to come from the “we had to destroy the village to save it” school of thought.

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  28. Ken_L says:

    @Kathy:

    Someday, everyone will be sued every 15 minutes.

    I find your comment objectionable, and hope some day every state allows me to sue the pants off the owners of this website for publishing it.

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  29. Ken_L says:

    @Roger: Do these cases allow private litigants to recover damages, or only to obtain writs concerning breaches of administrative law? It’s rational, for example, to give me standing to seek an order to require a government agency to follow the prescribed statutory processes in approving a project, even though I have no personal interest in the project. But it would be irrational if I could seek damages, nor is it apparent how they could be assessed.

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  30. Chris C. says:

    This is the same general setup for how California chooses to enforce some of its environmental laws as well as the ADA. It leads, as you might expect, to unintended consequences such as empowering NIMBYs and businesses who don’t want competition, massive paydays for lawyers and serial litigants, and chaos/headaches/bankruptcy for everyone else, especially small businesses.

    It’s a terrible way to enforce laws, especially since even if you’re in compliance with whatever the law provides (which is often unclear), you still have to go through the costly court process to respond to lawsuits. One would hope California might start to reform this process given the outcry over its use in this Texas case, but I wouldn’t hold my breath.

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  31. Chip Daniels says:

    If the extreme action was restricted solely to abortion, conservatives might be able to mount a defense of urgency in defense of human life.

    But this is in keeping with their actions on virtually everything, that establishing themselves as the only holders of power is the only thing that matters and overrules all other considerations.

    Whether it is holding an empty SCOTUS seat open for a year, or rushing one through only weeks before an election, or gerrymandering, or voting restrictions, or just outright mob violence, they have abandoned any effort at being partners in a republican democracy.

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  32. Moosebreath says:

    @Chip Daniels:

    “conservatives might be able to mount a defense of urgency in defense of human life”

    Except they show no such urgency about an epidemic which has killed about 1 in every 500 Americans. To the contrary, they seem to be doing everything they can to increase the death toll.

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  33. Jay L Gischer says:

    Ok, so here’s what my fevered programmer’s brain is considering now. So, if 10 people find out that you drove someone to the airport so they could fly to CA to get an abortion, can all 10 of them sue you and each get 10 thousand?

    That’s insane.

    Or, is it more that they each get to split the pie awarded by the court?

    If it’s the latter, this gives me an idea for a strategy: Have a ton of volunteers ready to “join” any civil suit, get their cut, and hand the money back.

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