In allowing abortion providers to sue only a narrow set of state officials, the Supreme Court’s recent ruling in Whole Woman’s Health v. Jackson raised as many questions as it answered. In the short run, it is possible that the federal district court will be able to provide some relief against SB8, the Texas law that allows anyone to sue anyone who performs or abets an abortion after roughly six weeks in pregnancy. Certainly, that was the hope expressed by Chief Justice Roberts and three colleagues in his call for the trial judge to “resolve this litigation and enter appropriate relief without delay.”
Yet it is unclear that a lawsuit against the licensing officials whom the majority allowed as proper defendants will provide an avenue for the kind of broad relief needed to protect abortion providers from SB8’s deliberate chilling effect. Even if the district judge asserts such authority, the U.S. Court of Appeals for the Fifth Circuit or the Supreme Court itself might narrow the scope of any injunction. And that’s before the high Court overrules the abortion right entirely—as it appears poised to do in the Mississippi case that was argued just over a week before the justices handed down the SB8 decision.
In the meantime, the type of threat posed by SB8 will repeatedly arise if, as Justice Sotomayor warned in dissent, other states copy the law’s private-enforcement-only mechanism with respect to abortion as well as to target what she called “locally disfavored rights.” As if on cue, California Governor Gavin Newsom promptly proposed legislation modeled on SB8 that would shield his state’s assault weapons ban from further federal court challenge.
Yet Justice Gorsuch, writing for the Supreme Court majority, seemed to shrug off Justice Sotomayor’s concern that other states will come to routinely employ “private bounty hunters” in the way that Texas does. Seeking to normalize SB8, he wrote that
somewhat analogous complaints could be levied against private attorneys general acts, statutes allowing for private rights of action, tort law, federal anti-trust law, and even the Civil Rights Act of 1964. In some sense all of these laws “delegate” the enforcement of public policy to private parties and reward those who bring suits with “bount[ies]” like exemplary or statutory damages and attorney’s fees. Nor does Justice Sotomayor explain where her novel plan to overthrow this Court’s precedents and expand the equitable powers of federal courts would stop—or on what theory it might plausibly happen to reach just this case or maybe those exactly like it.
Is that right? Is SB8 no different from numerous other garden-variety civil lawsuits between private parties in which the state has no direct role? Not quite. As I explain below, the Supreme Court’s own jurisprudence in the related area of legal standing shows why and how SB8 really is something new.
Private Litigation in the Public Interest
Justice Gorsuch’s characterization of SB8-style legislation clearly misfires insofar as he compares it to all private civil litigation. It is true, of course, that such litigation serves public as well as private ends. For example, a tort suit alleging that a product contained a design defect leading to the plaintiff’s injuries seeks compensation for those injuries, but also serves a deterrent function that can substitute for direct regulation: prudent manufacturers will design their products in a way that minimizes the combined cost of production and lawsuits. However, the law still requires that plaintiffs sue for injuries that they themselves suffered. Justice Sotomayor made that clear when she described SB8 as taking the “unprecedented step of delegating” the state’s “enforcement authority to the world at large without requiring any pre-existing stake.”
The novelty of SB8 is not the fact that it leverages private litigation to serve public ends. Justice Gorsuch is of course correct that private litigation routinely works that way. What makes SB8 novel is, just as Justice Sotomayor said, that it authorizes people who are not themselves injured by a law’s violation to bring suit.
That distinction also disposes of most of Justice Gorsuch’s other examples: treble damages in antitrust and other so-called “private attorney general” mechanisms almost invariably incentivize people with what Justice Sotomayor aptly called a “pre-existing” stake in a dispute to forcefully pursue their claims. Moreover, such efforts typically complement public enforcement, rather than, as in SB8, purport to completely displace public enforcement. Both the Federal Trade Commission and a division of the Department of Justice enforce the nation’s antitrust laws. Another division of the Department of Justice, as well as the Equal Employment Opportunity Commission, the Department of Education, and additional government units enforce the Civil Rights Act of 1964 and related laws.
There is, however, one example Justice Gorsuch might have (but did not) cite that comes closer to rebutting the argument that SB8 is unprecedented. A small number of federal statutes authorize people who have acquired information about wrongdoing against the government but not against themselves to sue as so-called qui tam plaintiffs. In the 2000 case of Vermont Agency of Natural Resources v. United States ex rel. Stevens, the Supreme Court upheld qui tam actions against the objection that qui tam plaintiffs lack standing because they have not suffered personal injury themselves. Relying in part on the historical pedigree of the qui tam procedure (which first arose in late 13th century England), Justice Scalia, writing for the Court, rejected the objection. A qui tam plaintiff has standing as an assignee of the government, he wrote, in virtue of “his bounty.”
Thus, we see that the one class of cases that might be deemed precedent for the otherwise-unprecedented mechanism of SB8 directly contradicts Justice Gorsuch’s characterization of that mechanism as something other than the authorization of bounty hunters. And even qui tam actions are hardly a perfect analogy. Like every example that Justice Gorsuch provides, they supplement rather than supplant public enforcement.
A Workable Line
Justice Gorsuch’s slippery-slope objection to his dissenting colleagues thus falls flat. The near-uniqueness of SB8 and its resemblance to the unusual qui tam action suggest a workable means of distinguishing nearly every other circumstance.
To be sure, the Vermont Agency case decided a question of standing under Article III of the U.S. Constitution, which limits the jurisdiction of federal courts but not state courts. Although many states (including Texas) have similar rules about who can sue, so far as federal law is concerned, states act permissibly when they expand the universe of possible plaintiffs to a state law claim.
However, that does not mean that in so doing, anything goes. If a state loosened its standing rules to allow lawsuits by white but not Black plaintiffs, or by Lutherans but not practitioners of other faiths, it would run afoul of the Constitution’s proscriptions on discrimination based on race or religion, respectively.
Likewise, if a state so loosens its standing rules in the way that Texas did for SB8, and if it does so for the obvious purpose of insulating from federal judicial review a law that chills the exercise of a constitutional right, then it is appropriate to adapt the analysis of Vermont Agency for a different purpose: to determine whether the plaintiffs who sue under that law are bounty hunters who have been delegated power by the state rather than garden-variety private parties whose efforts to seek remedies for their own injuries also provide public benefits. In the rare circumstances of a law like SB8, then, the equitable remedy of Ex Parte Young would be available against state court clerks, the state attorney general, and any other government officials over whom jurisdiction would be necessary to vindicate constitutional rights and frustrate the state’s efforts to circumvent its legal obligations.
Justice Gorsuch and the majority in Whole Woman’s Health worried about the wrong floodgates problem. Given the limiting principle that can readily be adapted from the Court’s own qui tam standing decision, allowing lawsuits against a broader set of defendants in the SB8 case would not have ushered in a flood of lawsuits against state court clerks. However, the Court’s rejection of broad relief could well invite a flood of state laws that succeed in chilling the exercise of constitutional rights and avoiding effective judicial redress.