Maneuvering Around the Court: Stanford’s Civil Procedure Expert Diego Zambrano on the Texas Abortion Law

A new Texas law, known as SB8, seeks to bar abortions in the state starting at six weeks of pregnancy. Instead of relying on government enforcement, the law empowers anyone to bring a claim against an abortion provider (or anyone who “aids and abets”) for a statutory penalty of at least $10,000. The law also adopts labyrinthine procedures to avoid federal constitutional review. For instance, to challenge the constitutionality of a statute, plaintiffs typically sue the government officials in charge of enforcing the law. By deputizing private enforcers, however, Texas seeks to avoid this method of judicial review.

Abortion providers recently challenged this new law in federal court, naming as defendants a state judge, county clerk, and a pro-life activist who would likely seek to enforce the law. The providers argued that if the law went into effect on September 1, it would have a devastating deterrent effect on all abortion providers in the state. After an initial motion to dismiss was denied, defendants appealed the decision through the Fifth Circuit and, eventually, the U.S. Supreme Court. Last week, the Court refused to intervene in the lawsuit, allowing SB8 to go into effect. A majority of the Court reasoned that the application for a stay of enforcement “presents complex and novel antecedent procedural questions” that need to be resolved in lower court proceedings. The Court noted that it may not be able to issue an injunction against state judges or potential future plaintiffs. Moreover, abortion providers may not have standing under Article III because no particular private enforcer is imminently suing. In dissent, Justice Sotomayor criticized the decision as a direct attack on the well-established federal constitutional right to abortion.

Diego Zambrano 1
Professor Diego Zambrano

Here, Stanford Law Professor Diego Zambrano, a civil procedure expert, discusses the law as a maneuver to avoid court review, the scope of injunctive relief, potential offensive litigation brought by plaintiffs under SB8 against abortion providers, and more.

The law deputizes ordinary citizens to sue anyone who “aids or abets” an abortion. Plaintiffs who have no connection to the patient or the clinic may sue and recover legal fees, as well as $10,000 if they win. Is this unusual?

SB8 is highly unusual and, in my view, a pernicious use of private enforcement to challenge a recognized federal constitutional right to an abortion. Texas created a procedural Frankenstein designed solely to nullify a federal right and avoid federal judicial review. Let me take this step by step and walk through the doctrine and other uses of private enforcement.

As an initial matter, statutes that empower private plaintiffs to enforce specific provisions are not unusual. Indeed, it is in one sense the “American way” of enforcing the law. Whereas Europeans and most of the civil law world rely on extensive “public enforcement” regimes—specialized bureaucrats and administrative schemes—we rely much more on private enforcement of important statutory areas. We empower private plaintiffs in contexts like antitrust, environmental pollution, employment wages and hours, and securities fraud. And just like the federal government, state governments have adopted numerous private enforcement schemes in all of these areas.

What is unusual is statutory enforcement by private plaintiffs who have not suffered a direct injury. Most private enforcement regimes empower only citizens who have been injured or suffered damages in some way. In a current empirical project measuring the use of private enforcement across the states, we have found that those provisions usually empower “a person who is injured. . .” or one who has “suffered damages.” For instance, wage and hour provisions protect employees who have not been paid. Antitrust provisions cover consumers and competitors who have suffered from monopolization. And so on. SB8, by contrast, seems to empower anyone, regardless of the existence of a direct or even indirect injury. The law also contains a wealth of pro-plaintiff provisions, including: venue in the plaintiff’s home county, the chance to collect attorney’s fees, and liability extending to those aiding and abetting but not performing the abortion. That is highly unusual.

Can you talk more about other laws that empower “anyone” to bring a claim?

There are at least two areas of law that similarly empower “anyone” to bring a claim: qui tam suits and environmental claims. Qui tam suits are sui generis and limited to fraud on the government so let me focus on the environmental category. Across the states, environmental statutes include provisions that, on their face, give enforcement power to almost any member of the public. For instance, “[u]nder the New Jersey Environmental Rights Act, any person may commence a civil action in a court of competent jurisdiction against any other person alleged to be in violation of any statute, regulation, or ordinance which is designed to prevent or minimize pollution, impairment, or destruction of the environment.” Similarly, a Massachusetts pollution control provision mentions that any “resident” can “enforce the requirements of this chapter, or to abate a hazard related to oil or hazardous materials.” Like the Texas bill, these statutes don’t say anything about a direct or indirect injury.

Environmental claims are, in other ways, radically distinct from SB8. One easy way to distinguish them is that environmental enforcement regimes are geared towards vindicating recognized state rights (constitutional or statutory) to a clean environment. SB8, by contrast, does not vindicate an established right recognized by law. Moreover, in the environmental context the community arguably suffers an injury in the form of environmental pollution and degradation. So, technically, everyone is at least indirectly harmed. By contrast, random members of the public are neither directly nor indirectly harmed by someone else procuring an abortion. Defenders of the Texas bill might respond that they are harmed by living in a community where abortion is legal. But that kind of “harm” is not one that state or federal law recognizes. And it is a kind of “harm” that runs against our constitutional traditions. Observe, for instance, that states don’t empower any member of the public to enforce criminal laws against murder or assault, even though that similarly “harms” a community. It is this aspect of the law that has provoked charges of “vigilantism.” (With all that said, I fear that trying to distinguish claims by whether or not they cause a certain kind of “harm” can devolve into the traditional arguments for and against abortions).

More importantly, despite superficial similarities to some private enforcement regimes, there are two highly unusual and perhaps unprecedented aspects of SB8: (1) The Texas law targets a federally protected and well-established constitutional right to abortions (and more generally, bodily autonomy); (2) everyone agrees that Texas adopted a private enforcement regime with the explicit purpose of avoiding federal constitutional review. In the environmental context, states adopt private enforcement for many legitimate reasons (e.g., budgetary, to increase enforcement, to avoid regulatory capture, etc.). The Texas abortion bill is quite different on both of those grounds. As I mentioned above, to challenge the constitutionality of a statute, plaintiffs usually sue government officials in charge of enforcing the law. By relying on private enforcement by so called bounty-hunters, however, Texas has avoided this method of judicial review.

I have never seen a state provision that uses private enforcement to both nullify a federal constitutional right and avoid federal judicial review. It is clear that Texas is trying to tee up a challenge against Roe v. Wade. Test cases to challenge established precedent are common. But I have to admit that the way Texas has gone about this is quite destructive and unprecedented.

If the Texas law empowers any plaintiff to bring a claim, what standing would the person bringing the case have, if they are not directly harmed?

Most scholars would agree that an SB8 claim by a random member of the public against an abortion clinic would be dismissed in federal court for lack of Article III standing. Article III of the constitution limits judicial power to the resolution of “cases” and “controversies” in which a plaintiff suffered a concrete injury. The Supreme Court held in Lujan v. Defenders of Wildlife that indirect or speculative harms do not confer standing. In that case, plaintiffs attempted to use a private enforcement provision in the Endangered Species Act that empowered “any person” to “commence a civil suit on his own behalf . . . to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter.” Plaintiffs challenged a regulation issued by the Interior Department because it was not, in their view, sufficiently protective of endangered species. But the Supreme Court concluded that this was a speculative harm that did not confer standing, regardless of the expansive language in the statute. Article III requires much more than a mere generalized grievance. And the public interest that other entities comply with the law cannot “be converted into an individual right by a statute that denominates it as such, and that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue.” Lujan, 504 U. S. at 576–577. Under Lujan and its progeny, federal courts would easily hold that an SB8 plaintiff lacks a concrete injury (and therefore can have no Article III standing).

But, here’s the rub, Article III does not apply in state courts. So, state governments can and do have their own standing rules. I understand from some of the commentary and other scholars that Texas has adopted standing requirements similar to those in federal courts. If that is true, then no plaintiff would have standing to sue in Texas courts either. But Texas standing rules are sufficiently unclear or different that it is not easy to tell if there would be standing for an SB8 claim. Moreover, many observers fear that Texas courts will recognize broader standing under Texas law and give the green light to SB8 claims. That means that most abortion providers are probably deterred by SB8 and cannot rely on the possibility of dismissal for lack of standing.

The Texas law bars state officials from actually enforcing it. Can you talk about that—is it unusual? It seems to be designed as a maneuver to avoid court review.

It is highly unusual for a state to engineer a private enforcement regime only to avoid federal constitutional review. Again, Texas prohibited public enforcement so that abortion providers could not challenge enforcement of the law by a government official. With that said, it is not unusual to rely solely on private enforcement. There are many statutory regimes that empower only private plaintiffs to bring claims and not the government. For instance, even though most states adopt hybrid (both public and private enforcement) regimes in the employment context, more than a dozen states have purely private wages and hours regimes.

How can abortion clinics in Texas and their clients challenge this law?

SB8 claims will mostly be heard in state courts. The barriers to getting these claims in federal court sound like a civil procedure and federal courts syllabus: lack of federal question and diversity subject matter jurisdiction, the questionable applicability of Ex parte Young to state judges, abstention doctrines, etc. Even setting aside these questions, SB8 claims would be rejected for lack of Article III standing in federal court. That means that if a defendant managed to remove one of these claims to federal court, it would be dismissed and remanded back to state court.

Some activists have tried to engineer claims that can be heard in federal courts, and they may well succeed (including the one that the Supreme Court addressed this past week). For instance, perhaps pro-choice groups will be able to create a diversity claim that relies on a concrete injury. Without going into the possibilities for constitutional challenges, most cases will probably proceed in state courts until one reaches the Texas Supreme Court and can be appealed to the U.S. Supreme Court.

Diego A. Zambrano is an associate professor of law at Stanford Law School. His primary research and teaching interests lie in the areas of civil procedure, transnational litigation, and judicial federalism. His work generally explores the civil litigation landscape: the institutions, practices, and incentives that influence litigant choices and outcomes, including how parties in the legal system strategically shape and respond to procedural rules. Professor Zambrano also has an interest in legal developments related to Venezuela. During 2019-2020, he led an innovative Stanford Policy Lab on “Rebuilding the Venezuelan Judiciary” and served as an advisor to opposition political parties in the Venezuelan National Assembly.