Texas abortion laws make the courts put a bounty on compliance

It’s almost a return to the Wild West as new abortion laws in Texas have used the courts to put a $10,000 ‘bounty’ on violations.

The use of the Texas civil courts to award “statutory damages” to parties who would otherwise not have standing to seek compensation raises fundamental questions about the separation of powers and the proper role of the courts.

While citizen enforcement of legal obligations is not new, Texas has taken things in a worrying direction.

What is going on?

There is a significant political controversy in the United States presently about abortion law reform and whether the US Supreme Court will overturn the long standing position established in Roe v Wade, 410 US 113 (1973),where the court held Texas’ abortion laws to be unconstitutional and set new standards.

While Roe v Wade has been the subject of ongoing political debate in some parts of the United States, many commentators now see the new composition of the US Supreme Court would be more likely to take a different approach if the issue comes back before the court.

Pre-empting or perhaps even provoking a reconsideration by the Supreme Court, earlier this year the Texas legislature enacted new state laws which contradict Roe v Wade. The new Texas provisions were known as Legislative Session 87 Senate Bill 8¹ or ‘SB8’ and were extraordinary as they gave private citizens only the right to enforce the laws through civil actions for statutory damages in the state’s courts. The scheme set up a financial reward of at least $10,000 for the first plaintiff to successfully sue for each violation of the new law.

Presently the US Supreme Court is considering two challenges to SB8, including how those laws can come under judicial review given the nature of citizen enforcement of legislative requirements.

What is citizen enforcement?

Citizen enforcement or citizen suit is a legislative device originating in the United States which permits private citizens to use civil proceedings in the courts to enforce the legislative obligations of third parties.

It is mostly used in environmental laws and permits an interested third party to bring a court action to restrain a person from doing something that is illegitimate and obtain redress for the public interest. Citizen enforcement is usually an alternative to government enforcement and was created to put pressure on government agencies to actively enforce legislative requirements.

The US Clean Air Act, for example, has a provision² which permits any person to commence a civil action against anyone who has violated legislative emissions standards and empowers the court to order injunctions, civil penalties to be paid to the government and costs orders for a successful plaintiff. A key element of the provision is legislatively overcoming the issue of standing that would ordinarily be required to seek a civil remedy.

In Australia there are also limited examples of citizen enforcement provisions in section 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and section 505(1)(d) of the Environmental Protection Act 1994 (Qld).

How does the new Texas law work?

SB8 takes the established model for civil enforcement of environmental laws and twists it to create a scheme of private enforcement of the law for profit by any person, irrespective of their separation from the conduct amounting to a breach.

In an arrangement effectively akin to a ‘wanted’ poster from the wild west, SB8 uses the civil courts and ‘statutory damages’ as the vehicle to put a price of at least $10,000 on the head of each ‘violation’, where the first to sue gets the reward.

Section 171.208, ‘Civil Liability For Violation Or Aiding Or Abetting Violation’, of the SB8 provisions, sets out the framework for citizen enforcement. Key elements of the provision include that:

• Any person may bring a civil action for breach of SB8 and there need not be any connection between the defendant and the plaintiff.
• A successful plaintiff must be awarded “statutory damages” of at least $10,000 for each breach of SB8, but damages are awarded once only per breach to the first successful plaintiff.
• Successful plaintiffs may be awarded costs, but defendants may not be awarded costs irrespective of whether they are successful.

Relevant elements of Section 171.208 provide:

“(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).

(b) If a claimant prevails in an action brought under this section, the court shall award:

(1) injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;

(2) statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and

(3) costs and attorney’s fees.

(c) Notwithstanding Subsection (b), a court may not award relief under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion performed or induced in violation of this subchapter, or for the particular conduct that aided or abetted an abortion performed or induced in violation of this subchapter.

(e) Notwithstanding any other law, the following are not a defense to an action brought under this section:

(1) ignorance or mistake of law;

(2) a defendant’s belief that the requirements of this subchapter are unconstitutional or were unconstitutional;

(3) a defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this subchapter;

(4) a defendant’s reliance on any state or federal court decision that is not binding on the court in which the action has been brought;

(5) non-mutual issue preclusion or non-mutual claim preclusion;

(6) the consent of the unborn child’s mother to the abortion; or

(7) any claim that the enforcement of this subchapter or the imposition of civil liability against the defendant will violate the constitutional rights of third parties, except as provided by Section 171.209.

(f) It is an affirmative defense if:

(1) a person sued under Subsection (a)(2) reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion had complied or would comply with this subchapter; or

(2) a person sued under Subsection (a)(3) reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion will comply with this subchapter.

(f-1) The defendant has the burden of proving an affirmative defense under Subsection (f)(1) or (2) by a preponderance of the evidence.

…

(i) Notwithstanding any other law, a court may not award costs or attorney’s fees under the Texas Rules of Civil Procedure or any other rule adopted by the supreme court under Section 22.004, Government Code, to a defendant in an action brought under this section.”

Critically, SB8 also excludes enforcement by government agencies to make challenging the law more difficult. Section 171.207, ‘Limitations on Public Enforcement’, includes:

“… 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.”

The design of the legislation raises fundamental questions about the mode of enforcement by private citizens for profit and the use of the civil courts as the venue for enforcement, abrogating the usual requirements for standing and compensation for injury.

Questions have been raised about whether it is consistent with the separation of powers and the proper role of the courts to be administering a ‘bounty’ regime for legislative compliance where private damages are not connected to injury or loss.

These concerns were voiced by a group of over 370 Texas attorneys in an open letter to the Texas legislature during consideration of the Bill³ earlier this year. The letter said:

“As licensed attorneys in the state of Texas, including former judges, attorneys who are board certified in Civil Trial law, Civil Appellate Law, and Health Law, and other members of the State Bar of Texas, we are deeply concerned by the provisions in Senate Bill 8 (SB 8) and House Bill 1515 (HB 1515) that create an unprecedented cause of action for the enforcement of healthcare regulations…

“We are specifically concerned that HB 1515 and SB 8 grant ‘any person’ the right to sue, including even those who do not reside in Texas and those with no connection to a patient, against a broad range of defendants…

“This exceptionally broad cause of action and the almost unlimited array of potential defendants is inconsistent with the Texas Constitution’s minimum requirements to maintain a civil legal action in Texas. The Texas Constitution allows access to our courts only to a ‘person for an injury done him.’ Tex. Const. Art. I, §13. As Justice Willett explained, ‘In Texas, the standing doctrine requires a concrete injury to the plaintiff’ and ‘[t]he plaintiff must be personally injured—he must plead facts demonstrating that he, himself (rather than a third party or the public at large), suffered the injury.’ Heckman v Williamson County, 369 S.W.3d 137, 154-155 (Tex. 2012).

“The Texas Legislature cannot bestow standing on someone who has not personally suffered an injury without violating the separation of powers doctrine. The Texas Supreme Court has elaborated on this bedrock rule repeatedly. As Chief Justice Hecht explained succinctly, ‘courts’ constitutional jurisdiction cannot be enlarged by statute.’ Finance Commission of Texas v Norwood, 418 S.W.3d 566, 583 n. 83 (Tex. 2013). Chief Justice Hecht has also noted: ‘For the Legislature to attempt to authorize a court to act without subject matter jurisdiction would violate the constitutional separation of powers.’ In re Lazy W Dist. No. 1, 493 S.W.3d 538, 544 (Tex. 2016). By attempting to grant standing to individuals who have not personally suffered an injury, SB 8 and HB 1515 subvert this core constitutional and democratic principle.

“In addition to the constitutional issues outlined above, this legislation further weaponizes the judicial system by exempting the newly created cause of action from the normal guardrails that protect Texans from abusive lawsuits and provide all litigants a fair and efficient process in our state courts.

“The proposed legislation would allow a plaintiff to file the lawsuit in their own home county and then block transfer to a more appropriate venue. This contradicts the general venue provisions in the civil practice and remedies code. Furthermore, the bills prevent unjustly sued defendants from recovering attorney fees for frivolous and harassing lawsuits under the Texas Rules of Civil Procedure allowing plaintiffs to harass defendants without any repercussion.

“Perhaps most troubling is that these proposals would impose liability on people whose actions were legal at the time they took them. The bill specifically prohibits the defense that a party relied on a court decision that was valid at the time of their actions but that was later overruled—meaning even if a person was following the law, they could still be liable if the law changed later. This type of ex post facto liability violates the very bedrock of our legal system which requires notice and due process before imposing liability.

“Regardless of our personal beliefs about abortion, as licensed attorneys sworn to uphold the constitutions of Texas and the United States, we implore you to not use the judicial branch in the political battle over abortion with legislation that subverts the foundations of our judicial system. All Texans deserve a fair and predictable court system whose impartiality is above question. Anything less ruptures basic notions of fairness and liberty in a democratic society. Because we care about these fundamental values—and we believe you do too—we urge you to vote against HB 1515 and SB 8.”

The Texas lawyers pose some fundamental questions about the operation of the new laws and the discordant role the Texas courts are placed in. Whether it is appropriate for the court and court processes to be used in this way is a relevant and important question.

Courts have a fundamental role in protecting the rule of law but also maintaining an appropriate separation and independence from the other branches of government. SB8 challenges those fundamental principles in the way it seeks to encourage compliance by litigation bounty hunting and restraining some of the usual discretions of the court directed toward equal treatment of litigants.

The Texas experiment may well fail in the Supreme Court, but it has set an ominous precedent for a new kind of profitable private activism in legislation compliance and a distorted role for the courts.

The sting in the tail, however, is whether some of the fundamental concerns arising from the inappropriate construction of SB8 are also applicable to other forms of citizen enforcement regimes where usual standing rules have been altered by statute.

Matt Dunn is Queensland Law Society General Manager, Policy, Public Affairs, and Governance.

Footnotes
¹ For text and legislative history, see capitol.texas.gov/BillLookup/History.aspx?LegSess=87R&Bill=SB8.
² 42 US Code § 7604 – Citizen suits, see law.cornell.edu/uscode/text/42/7604.
³ documentcloud.adobe.com/link/review?uri=urn:aaid:scds:US:38eff803-3fd3-498b-a6b4-658305bf6beb#pageNum=1.