I participated last Friday in Georgia Law Review’s Symposium, Polarized Courts: The New Private Enforcement. It was a great program. Some thoughts that came out of it, including things that never occurred to me despite pondering this for almost five years.
• I remain the most sanguine (or maybe the least panicky) about how bad these laws hurt. Everyone points to the effects of S.B. 8 in Texas–abortions dropped by half in the state following WWH. But the conclusions are limited because Dobbs rendered S.B. 8 constitutionally valid five months later. We never had a chance to see whether alternative offensive litigation strategies (state law actions, § 1983 actions against private enforcers) offered sufficient vehicles for constitutional litigation. Nor did we have a chance to see whether defensive nullification (via the friendly suits v. the doctor who announced having performed an abortion) sufficed.
• Some papers in the program trigger a CASA/universal injunction link. One criticism of “sue-the-S.B.8-plaintiffs” is that it does not stop other enforcement. An injunction prohibiting S.B.8 Plaintiff A from suing WWH does not prohibit S.B. 8 Plaintiff B from suing WWH over the same or a different abortion. Nor does it prohibit S.B. 8 Plaintiff A from suing Planned Parenthood.1
After CASA (or if anyone had listened to Sam Bray pre-CASA), the same is mostly true for litigation against government officials. An injunction prohibiting Texas officials from enforcing S.B. 8 against WWH would stop all future enforcement against WWH. But it would not prohibit enforcement against Planned Parenthood, which would continue to face enforcement threats.
The point of constitutional litigation is to create precedent; the single action against S.B. 8 Plaintiff A, once affirmed, achieves that. This process does take time. But constitutional litigation takes time. It does not protect all rights-holders from all enforcers all at once. That is the (correct) point of CASA and a product of consigning judicial review to individualized litigation. It carries into the private-enforcement realm, in a way that creates some new difficulties. But that is another reason why S.B. 8 and its copycats are not so entirely new.
• An interesting new strategy: \WWH sues a potential S.B. 8 plaintiff for a declaratory judgment of non-liability ahead of any private action, in a Skelly Oil type suit. Tort defendants generally do not do this outside the insurance context, although it is not unheard of. Two problems, I think. First, given Skelly, the action could not be in federal court absent diversity jurisdiction, so it does not resolve the problem of rights-holders being stuck in federal court. Second, plaintiffs may run into the same issue of being able to show that an S.B. 8 enforcement action is likely or imminent; Rocky tells me state courts are stingy about that.
• Are there alternative causes of action to § 1983 against the S.B. 8 plaintiff (without the tricky under-color requirement)? Susan Tanner (Louisville) floated the idea of an express federal statutory cause of action against the S.B. 8 plaintiff. But that raises questions of the power source. Congress cannot regulate (or provide for suit against) private conduct under § 5. And while abortion affects interstate commerce, I wonder if a law authorizing a suit against a private person who sues under state law over interstate activity is too remote a connection.
Alternatively, could an ordinary abuse-of-process tort do the trick? Does the likely (certain?) constitutional invalidity of the state law sued upon render a lawsuit under that state law an abuse of process?
• A conversation over lunch offered a new option: The anti-SLAPP approach. Congress could create federal procedures for early resolution of SB 8-type actions, including a special pre-discovery dispositive motion, attorney’s fees, and immediate review. This could resolve the main objection to defensive nullification–the chilling effect of the threat of suit–by enabling federal rights-holders to defeat litigation (and thus liability) early and with minimal costs.
This opens some interesting questions: Could such a procedural scheme provide a basis for removal? Can SB 8-type actions be removed, since a true any-person plaintiff would lack Article III standing? Could Congress impose these procedural requirements on state courts (if the cases must remain in state court)?
This has some interesting potential. I had not planned on writing about private enforcement after the Georgia piece. Maybe not. Plus, it offers the greatest title in the history of titles: SLAPPing Exclusive Private Enforcement.
- And S.B. 8 prohibits defensive non-mutual issue preclusion. So Planned Parenthood could not rely on the preclusive effect of the adverse judgment in the WWH action against A. ↩︎