Thursday, September 09, 2021

Living in Interesting Times

And here's the part I'm most interested in (I'm leaving out as much of the "legal technicalities" as I can. They aren't technicalities, but that's what the non-lawyers in the media call them, so consider it shorthand for "the stuff that takees too long to explain").  I've highlighted the bits I think are the most important parts, for the benefit of the non-lawyers among you.

 In a transparent effort to evade constitutional scrutiny, Texas has outsourced the authority to enforce S.B. 8 to ordinary citizens. S.B. 8 prohibits state and local governmental entities and their employees from enforcing the statute. In their place, S.B. 8 empowers any person to file suit against anyone who performs a prohibited abortion, aids or abets such an abortion, or “intends” to do either of those things. § 171.208(a). A successful claimant can obtain an injunction that prevents a defendant from engaging in these activities, and is entitled to at least $10,000 (S.B. 8 does not set a maximum) in “statutory damages” for each abortion the defendant has performed, aided, or abetted, as well as costs and attorney’s fees.

28. The statute assigns enforcement authority to private individuals through civil litigation in state court as a means of evading lawsuits challenging S.B. 8’s constitutionality. Cf. Whole Woman’s Health, 2021 WL 3910722, at *1 (Roberts, C.J., dissenting) (“The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.”). Indeed, S.B. 8 was specifically designed to evade ordinary constitutional review. Specifically, the law bars its own enforcement by public agencies but creates a private cause of action that requires state courts to grant injunctive relief and statutory damages for constitutionally protected activity. §§ 171.207, 171.208(b).

Citing the Chief Justice in a case declining to rule on this very statute is very astute pleading practice, by the way.

29. This intent has been unmistakably revealed in public statements by the law’s architects and champions. For example, the legislative director of Texas Right to Life stated that one of the “main motivations” for S.B. 8’s design is to stymie judicial review. See Emma Green, What Texas Abortion Foes Want Next, The Atlantic (Sept. 2, 2021), https://www.theatlantic.com/ politics/archive/2021/09/texas-abortion-ban-supreme-court/619953/ (asserting that S.B. 8 was crafted out of “frustrat[ion]” with courts that “block[] pro-life laws because they think they violate the Constitution or pose undue burdens”) (last visited Sept. 9, 2021).

30. Moreover, one of the attorneys principally involved in advising the State on S.B. 8 recently offered a similar observation about laws bearing S.B. 8’s private enforcement characteristic: “It is practically impossible to bring a pre-enforcement challenge to statutes that establish private rights of action, because the litigants who will enforce the statute are hard to identify until they actually bring suit.” Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 1001 n.270 (2018), https://www.virginialawreview.org/wp-content/uploads/2020/12/Mitchell_Online.pdf (last visited Sept. 9, 2021).

31. And Senator Bryan Hughes, one of the principal architects of S.B. 8 in the Texas Legislature, removed all doubt about this purpose when he informed reporters that S.B. 8’s structure was intended to avoid the fate of other “heartbeat” bills that have been struck down as unconstitutional. See Jacob Gershman, Behind Texas Abortion Law, an Attorney’s Unusual Enforcement Idea, The Wall Street Journal (Sept. 4, 2021, 9:38 A.M.), https://www.wsj.com/articles/behind-texas- abortion-law-an-attorneys-unusual-enforcement-idea-11630762683 (last visited Sept. 9, 2021). Sen. Hughes was quoted succinctly stating the point: “We were going to find a way to pass a heartbeat bill that was going to be upheld.” Id. Sen. Hughes elsewhere deemed the statute a “very elegant use of the judicial system.” Jenna Greene, Column: Crafty lawyering on Texas abortion bill withstood SCOTUS challenge, Reuters (Sept. 5, 2021, 1:52 P.M.), https://reuters.com/legal/government/crafty-lawyering- texas-abortion-bill-withstood-scotus-challenge-greene-2021-09-05/(last visited Sept. 9, 2021).

Here's hoping bragging so openly about how clever you think you were creates a certain amount of blowback. 

Those are the facts as background to the legal argument that follows:

32. While prior state efforts to unduly burden access to abortion services relied primarily upon executive enforcement of state law, “[i]t is doubtless true that a State may act through different agencies,” including “its legislative, its executive, or its judicial authorities; and the prohibitions of the amendment extend to all actions of the State denying equal protection of the laws, whether it be action by one of these agencies or by another.” Virginia v. Rives, 100 U.S. 313, 318 (1879). 

That's a citation to a Supreme Court opinion from 1879, which pretty much makes the argument there "settled law." (Unless the Supreme want to "unsettle it," and that's a matter for another day.)

Awarding the monetary relief that S.B. 8 authorizes—to plaintiffs who need not demonstrate any injury or other connection to the underlying abortion procedure—constitutes state activity designed to violate the Fourteenth Amendment rights of women in Texas. “That the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of th[e] [Supreme] Court.” Shelley v. Kraemer, 334 U.S. 1, 14 (1948). Thus, while Texas has gone to unprecedented lengths to cloak its attack on constitutionally protected rights behind a nominally private cause of action, it nonetheless has compelled its judicial branch to serve an enforcer’s role. “State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms.” Id. at 20.

As I was reading Professor Vladeck's tweets about this pleading (before reading it myself), I wondered if the DOJ would argue that the State is creating the framework for private citizens to employ the power of the state to deny individuals their constitutional rights.  That's exactly where this argument goes.  The action may be "private," but it has to be enforced by the courts of Texas.  In some of the preceding parts of the pleading, the DOJ points out the provisions of the statute which deny defenses to the defendants, setting up these lawsuits to be as simple as shooting fish in a barrel.  That, too, implicitly impinges on 14th Amendment protections of due process and equal protection.

33. Under the state-action doctrine, private actors also may be found to function as agents or arms of the state itself and thus are bound by the Constitution. See, e.g., Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (“state action may be found if . . . seemingly private behavior ‘may be fairly treated as that of the State itself’”); Smith v. Allwright, 321 U.S. 649, 663 (1944) (private actor was acting as “agency of the state”).

34. The Supreme Court has deemed individuals to be state actors where they exercise “powers traditionally exclusively reserved to the State.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928-29 (2019). S.B. 8 vests individuals with law-enforcement authority—a power traditionally reserved exclusively to a sovereign—in a manner that appears to be “unprecedented,” Whole Woman’s Health v. Jackson, 2021 WL 3910722, at *2 (Roberts, C.J., dissenting). Among other things, S.B. 8 does so by providing individuals with unsupervised authority to police violations of the law, and by enabling them to obtain civil penalties against anyone in the state without any showing of personal injury.

The DOJ really likes Roberts' dissent in Whole Woman's Health.

35. These individuals are also state actors to the extent they are significantly involved in conduct that would be unconstitutional if engaged in by the State itself or Texas has sanctioned their conduct. See, e.g., Reitman v. Mulkey, 387 U.S. 369, 380-81 (1967) (finding state action where law “authorize[d] . . . racial discrimination in the housing market”); Smith, 321 U.S. at 663-64 (state’s establishment of primary system made the private party that set up an all-white primary “an agency of the state”); Terry v. Adams, 345 U.S. 461, 469-70 (1953) (similar). S.B. 8 implicates this doctrine by expressly authorizing—indeed, empowering—individuals to engage in conduct that violates the constitutional rights of women throughout Texas, in a manner in which the State itself would not be able to engage.

And then it gets really interesting, with an argument about interstate commerce (which, among other things, is what the Civil Rights Act rests on for its authority):

Where the United States is obligated to provide the constitutional abortion services that S.B. 8 outlaws, S.B. 8 purports to require the United States to refrain from providing those services or to relocate women and possibly service providers out of Texas.

39. Similarly, S.B. 8 purports to require the United States to terminate existing monetary contracts and agreements that involve the insurance of or reimbursement of the abortion services S.B. 8 bans.

40. S.B. 8 further prohibits (and thus discourages) certain interstate commercial transactions involving Texas. For example, S.B. 8 appears to apply to monetary transfers into the State of Texas if those funds may, in any manner, facilitate an abortion. Thus, S.B. 8 may apply to insurance companies throughout the United States that cover abortion services provided in violation of the statute, as well as banks facilitating transfers of funds to reimburse women receiving restricted abortions. And S.B. 8 may also apply to medical device transactions involving out-of-state sellers, including, for example, the sale of medical equipment that could be used to perform abortions outlawed under S.B. 8.

They get even more particular, referring to specific programs operated by the federal government and impacted by this statute:

53. The Texas Job Corps Centers also must identify “available community health/social resources and services” and make arrangements for transportation so that the students in the program may access those resources and obtain such services; this includes, among other family-planning and reproductive-health services, transportation to allow an enrollee to obtain an abortion permitted by federal law but prohibited by S.B. 8. See PRH § 2.3(R7)(c)(1), (3). S.B. 8 potentially exposes to liability those personnel who identify such resources and provide such transportation to an enrollee who wants or obtains an abortion prohibited by S.B. 8.

54. To the extent S.B. 8 directs the conduct of federal contractors and their employees, the law is an unlawful direct regulation of the federal government and its contractors, and it unlawfully punishes federal contractors for carrying out the duties assigned to them by the federal government.

55. To the extent that any of the Texas Job Corps Contractors is held liable for statutory damages under S.B. 8, DOL may have to reimburse them for such penalties, thereby increasing the costs of the Job Corps program. Federal contractors are entitled to reimbursement of costs necessary to contract performance that are “reasonable,” “allocable,” and “allowable.” See 48 C.F.R. § 31.201- 2(a). The costs of fines and penalties resulting from the failure of the contractor to comply with S.B. 8 are likely allowable and thus recoverable from DOL where the fines and penalties are “incurred as a result of compliance with specific terms and conditions of the contract.” 48 C.F.R. § 31.205-15(a).

56. Since DOL’s contracts with the Texas Job Corps Contractors require the provision of abortion-related counseling and transportation services, the damages imposed under S.B. 8 on contractors and their staff acting within the scope of their employment are allowable and allocable contract costs and must be reimbursed by DOL, subject to procedural and other requirements for payment under the contracts. Thus, in addition to having its programmatic priorities frustrated, DOL anticipates bearing the costs of the fines, costs, and attorney’s fees that S.B. 8 authorizes claimants to recover in an action under S.B. 8.

57. Additionally, if Texas Job Corps Contractors, in an effort to avoid liability under S.B. 8 or to ensure that students can exercise their constitutionally protected right to abortion, attempt to meet their contractual obligations by offering transportation outside of Texas to students who elect to terminate their pregnancies after a fetal heartbeat is detected, these new and additional costs that are reasonably necessary for contract performance may ultimately be passed through to DOL and payable by DOL under its contracts. 

The federal government, in other words, has concrete interests that will be irreperably harmed by this statute, and therefore its enforcement must be suspended pending a final hearing.  That's just a sampling of the argument made in the complaint.  The complaint identifies similar injuries to the operations of:  the Office of Refugee Resettlement; the Bureau of Prisons; the Centers for Medicare and Medicaid Services; the Office of Personnel Management; and the Department of Defense.  There are detailed arguments for each one; I won't bore you with the details.

There's still a valid question here, on the matter of relief:

The complaint seeks a declaratory judgment, a maneuver that can obviate the need to have a plaintiff who has actually been harmed by this statute.  But how the Court can enjoin "....everyone...from enforcing it" is, perhaps, another matter.  The injunction would have to issue against the courts of Texas.  A declaratory judgment could hold the statute is constitutionally void.  But an injunction can't do that, by it's very nature.

So relief may not finally come until this matter reaches a final hearing.  On the other hand, the final resolution of this question of the enforcement method of this statute could mark "paid" to this cracked attempt to outsource such matters to private citizens purely to avoid judicial scrutiny.  And that won't, in the end, be a bad thing. Well, I hope so; but it ain't over 'til it's over, and it may be some time before this statute can be fully undone.

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