Last month, Texas adopted an anti-abortion statute that is noteworthy not so much for how it tries to deter abortions but for how it tries to deter legal challenges to the statute itself. To be sure, the statute’s prohibition on abortions after a fetal heartbeat can be detected (around six weeks after conception) makes the law among the more stringent in the nation. But several other states have enacted laws that are similar in substance. What makes the Texas law unusual is that it is to be enforced entirely by private plaintiffs—that is, no state official is authorized by the law to bring actions against people who violate the prohibition on abortions. Private individuals who successfully initiate civil legal actions against violators (the statute applies to abortion providers as well as other individuals who “knowingly engage in conduct that aids or abets the performance or inducement of” an abortion) are rewarded by a financial bounty of at least $10,000 per abortion, along with legal fees. But again, no state prosecutor or other executive official may, in an official capacity, bring a lawsuit to punish or deter violations.
Many laws (such as securities laws and antitrust laws) provide for private causes of action to supplement public enforcement by the executive branch. Some laws, such as the federal False Claims Act, give private whistleblowers a financial incentive for bringing fraud against the public fisc to the attention of public officials. But very few regulatory laws completely displace public enforcement in favor of private implementation.
While the Texas statute raises many interesting and important questions, there are a few things on which most all sophisticated legal observers would agree. One is that the prohibition on aborting fetuses that are less than two months along runs afoul of clearly established U.S. Supreme Court cases (such as Planned Parenthood v. Casey) recognizing under the Due Process Clause of the Fourteenth Amendment the right of a woman to terminate a non-viable fetus. And another is that the future of these cases at the newly constituted Supreme Court (with the addition of Justices Brett Kavanaugh and Amy Coney Barrett) is rather hard to predict at this time.
Which brings us to the likely reason the Texas statute displaces public executive branch civil actions in favor of private enforcement: such a move makes it much harder for abortion providers or abortion-rights advocates to bring a lawsuit to block statewide implementation of the statute. To see why, let’s consider various ways in which someone might try to invalidate the statute’s substantive restrictions on abortions.
First, an abortion provider who is sued under the statute could defend on the ground that the statute violates the recognized right in the Fourteenth Amendment to terminate non-viable fetuses. (Even though the abortion right belongs to the women seeking abortions, abortion providers traditionally have been allowed to assert the women’s rights given the role they play in vindicating the right.) Certainly if a private plaintiff sues an abortion provider in federal court, the court would be bound to follow the existing Supreme Court case law recognizing a right to reproductive autonomy, even if the lower federal court thought the Supreme Court is likely to overrule this case law at the next opportunity. In its 1989 decision in Rodriguez de Quijas v. Shearson/American Express, the Supreme Court admonished that “if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” But that principle might not help opponents of the Texas statute for a few reasons. First, the bulk of private enforcement actions are likely to be brought in state, rather than federal court (both because many plaintiffs are more comfortable there and because state courts can have more lenient rules than federal courts regarding the kind of stake a plaintiff must have in a dispute in order to have “standing”). And there is no clear authority from the Court on whether the Rodriguez de Quijas principle requiring judicial obedience to existing precedent on point until it is overruled applies to state courts. On one hand, an argument could be made that the principle—which seems designed to promote order and avoid a great deal of geographical disuniformity in the implementation of federal statutory and constitutional principles—sensibly applies to all courts whose rulings might ultimately be subject to review and reversal by the U.S. Supreme Court. On the other hand, there is also a case to be made that the U.S. Supreme Court’s power to impose the principle on lower federal courts derives from the fact that under Article III of the Constitution they are “inferior” to the Supreme Court, which therefore enjoys broad supervisorial power over the federal judiciary in a way it doesn’t over state courts. In this regard, note that the Court in Rodriguez de Quijas itself spoke of the duty of the “[federal] Courts of Appeals” to obey existing Supreme Court precedent on point, not of a duty of all other courts to do so. And if a state court in which an action seeking to enforce the new Texas law was filed were to decline to adhere to the Rodriguez de Quijas principle and instead try to predict how today’s Supreme Court will address the question of constitutional abortion rights, then the court very well could sustain and implement the Texas statute.
In any event, even if Texas state courts were to invalidate (that is, decline to implement on account of the Fourteenth Amendment) the new Texas statute in most or all of the individual cases brought before them, that would still be quite suboptimal from the vantage point of abortion rights advocates. Abortion providers might lack the resources to hire lawyers in every case to raise the federal constitutional defense, and thus might face liability. Some abortion providers are likely to be deterred from performing abortions at all if doing so will trigger a civil lawsuit. Because of these sorts of risks, abortion rights groups typically seek to bring so-called “facial” challenges to state laws that aggressively regulate abortion soon after the laws are enacted, seeking judicial relief that effectively blocks any enforcement of such laws across the entire state.
But herein lies the difficulty (from the perspective of abortion rights groups) in the new Texas statute. Ordinarily, when a governor or attorney general is tasked with enforcement of an abortion regulation, a statewide challenge can be brought in federal court simply by naming the relevant executive branch official in charge of enforcement and seeking an injunction preventing that official from taking steps to implement the (ostensibly) unconstitutional statute. Even though the Eleventh Amendment of the U.S. Constitution has been read by the Court to prohibit suit against a state (e.g., Texas) or a state-level entity (e.g., the Texas Department of Criminal Justice or the California Highway Patrol) in federal court without the state’s consent, the so-called Ex Parte Young doctrine permits suing state officials charged with enforcement responsibilities as long as they are sued not for money damages but for prospective injunctive relief. But since no public executive officials are involved in (indeed they are prohibited from) enforcing the new Texas law, neither the governor nor the attorney general is an appropriate defendant under Ex Parte Young under these unusual circumstances. (And lower federal courts have so held in other unusual instances of private-only enforcement.) So whom to sue?
One possibility is state judges. They will invariably be involved in processing claims under the new statute, and they are “state actors” who are governed by the due process limitations of the Fourteenth Amendment. An analogy to another part of the Fourteenth Amendment—the Equal Protection Clause—is quite instructive. When private lawyers (akin to private plaintiffs under the new Texas statute) seek to exercise peremptory strikes of would-be jurors on the basis of race or sex, the state court judge who formally implements the strikes is deemed the relevant constitutional wrongdoer, such that the peremptory strikes are unconstitutional, notwithstanding that the private plaintiffs themselves are not governed by the Fourteenth Amendment. So suing Texas state court judges in federal court, seeking an injunction against the imposition of liability on persons providing early-term abortions on the ground that liability would run afoul of the Due Process Clause, could be a promising route for abortion advocates to pursue. And the Supreme Court has made clear (for example in the 1984 case of Pulliam v. Allen) that while comity principles should inform a federal court’s decision whether to enjoin state court judges for future federal constitutional violations, state judges do not enjoy any absolute immunity from federal judicial relief that is prospective (that is, forward-looking) in nature.
But how would plaintiffs know which state court judges are likely to be presiding over civil cases under the new Texas statute? And even if plaintiffs knew about particular judges likely to hear particular cases, what about the desire to obtain statewide relief? Perhaps the answer is a lawsuit against a fluid defendant class consisting of all Texas state trial judges who could have jurisdiction over cases brought under the new law. Suing the Texas judiciary as an official entity raises a potential Eleventh Amendment problem (although there is a possible argument to be made that while the Eleventh Amendment forbids suing an executive branch agency, a judicial agency is different). But suing individual state court judges (even a large number or class of such individuals) arguably fits comfortably within the Ex Parte Young doctrine.
We think a federal court might very well have the power to entertain such a suit and enter an injunction against all Texas state court judges. But would a federal court actually do this? That is hard to say. If the Rodriguez de Quijas principle doesn’t independently constrain state court judges, many federal judges may believe that comity and federalism counsel restraint, and that the U.S. Supreme Court is the proper federal forum to oversee state courts in this realm. But, of course, getting a case through the state court system all the way to the U.S. Supreme Court would take a great deal of time which, abortion rights advocates would argue, permits violations of individual rights in the meantime. One possibility is that a lower federal court would initially issue only declaratory relief—a declaration that the Texas statute is invalid and unenforceable—and enter an injunction only should the state courts thereafter allow civil lawsuits against abortion providers. Such an incremental approach might nicely balance the federalism/comity interests on the one hand with the (at least as of now) recognized reproductive autonomy rights of women.
After we drafted this column, Whole Woman’s Health (WWH) (which in 2016 prevailed before the Supreme Court in a challenge to an earlier Texas abortion law) just a day or so ago filed a lawsuit in federal district court challenging the Texas statute. The lawsuit names a class of Texas state court judges as defendants. While the complaint does not grapple with all the issues we have set out (and complaints generally focus on facts rather than legal analysis), these issues (some of which are taken up in a motion for summary judgment WWH also filed very recently), alongside others, are worth following as the litigation proceeds.