The federal lawsuit against Texas’s anti-abortion law hit the ball right out of the park. Here’s why.

First, a little background.

Whole Woman’s Health v. Jackson is a lawsuit that was filed by an abortion provider, a pro-choice activist organization, and the ACLU with the aim of preemptively preventing the enforcement of SB 8 (Texas’s anti-abortion law). WWH v Jackson has been in the courts for some time. SB 8 was enacted on May 19, and WWH v Jackson was filed in a federal district court shortly thereafter. In the event, the plaintiffs failed in their effort to keep SB 8 from going into effect. It did so on Sept 1. Since then, all abortion services have been discontinued in Texas.

An enormously important lawsuit against SB 8 (United States v Texas) was filed by the federal government in a federal district court in Austin on Sept 9. It has dramatically shifted the ground against SB 8, including its enforcement mechanism, in a number of ways.

First, the United States suit is against the state of Texas itself, whereas WWH v Jackson made defendants of a much narrower class of defendants.

In WWH v Jackson, the state judges and all the law court and county clerks comprised one class of defendants. (Federal district court judge Robert Pitman merged all of these into a consolidated class of defendants; Judge Jackson, a state judge in Tyler, TX was named the principal defendant as representative of this consolidated class.) The plaintiff’s lawsuit also asked for an injunction against a private citizen (Dickson), an anti-abortion activist and outspoken advocate of SB 8, to bar him from suing abortion providers under the new law.

The abortion providers chose this legal strategy in order to focus on the enforcement mechanism of the law, which had barred any state officials from enforcing the law, but had granted any *private individual* in the state the right to sue abortion providers (and any and all aiders and abettors of abortions) once a “fetal heartbeat” had been detected in the pregnant woman. Hence the two classes of defendants that were named in the lawsuit: they were named because they were to be — or were likely to be — very directly involved in the enforcement of the law in civil courts.

Laws like SB 8 are called private attorney laws. SB 8 delegated authority to enforce the law to private citizens, who could now sue and seek civil penalties against abortion providers and any aiders and abettors of all disallowed abortions (which was virtually all of them); they were empowered to as agents of the state who had been granted authority to enforce the new law in civil courts. The new wrinkle of SB 8 is that it *also* barred the state government from enforcing the law in any way. This was done in order to evade state responsibility for enacting the law and to evade federal judicial scrutiny.

Accordingly, WWH v Jackson sought to preemptively prevent private enforcement action by the above classes of defendants. It did so on the grounds that the law that had been enacted (though not yet in effect at the time) was unconstitutional, because it abridged abortion rights that a woman has under the federal constitution.

United States v State of Texas, on the other hand, is much broader in scope and much more aggressive. Unlike the suit brought by the plaintiffs in WWH v Jackson, U.S. v Texas sues the state of Texas in its entirety.

There is yet another way that U.S. v Texas differs from WWH v Jackson. The federal government’s litigation also sues the state of Texas for violating the due process clause of the 14 Amendment of the United States Constitution, which runs as follows:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

For the first time, the enforcement mechanism of SB 8 has been directly challenged as unconstitutional.

Has Texas violated the due process clause with SB 8? Indeed it has, and for the reason the federal government has given.

When it was passed, the due process clause (and other clauses) of the 14th Amendment aimed to secure the equal protection rights of the newly freed slaves. Among other things, the due process clause has the effect of prohibiting a state from barring the former slaves (or any U.S. citizen) from securing their equal rights in courts of law, or to make it more difficult for them to do so. (In the law, the latter is called abridgment).

In a brilliant move, the federal government has applied the due process clause to the State of Texas’s law SB 8 and found it wanting. The point is actually an obvious one. It isn’t necessary to read penumbras and intimations into the due process clause to see that SB 8 does run afoul of the 14th Amendment.

Before the enactment and effective date of SB 8, abortion providers in Texas could provide abortion services, and women in the state could use their services to obtain abortions during the non-viability period of their pregnancies. Since September 1, any private citizen / resident of the state has been authorized to sue abortion providers (and any and all aiders and abettors of virtually all abortions) in state civil courts, and ask for penalties against them. The intention and the effect of the law is to ban virtually all abortions in the state by creating a private right of action, the purpose and effect of which has been to restrict (in fact to virtually abolish) the *access* to abortion that women in Texas formerly had.

The enforcement provisions of SB 8 stand for the proposition that, whatever abortion rights women in Texas might be deemed to have under federal law, they have no federally protected right to *access* to abortion. This is arrant nonsense. Certainly, the federal government is under no constitutional obligation to provide abortion services itself, nor even to ensure that abortion services are available. Nor is a state required to provide such services. But clearly a state cannot act to ensure that abortion services are *not* available in the state, either, because the right to have an abortion, at least during the non-viability period of the pregnancy, is a guaranteed federal right that cannot be impaired, impeded, or abridged under the due process clause of the 14th Amendment of the U.S. Constitution.

All the provisions of SB 8 operate together as a legal scheme or structure to abridge the privileges and immunities that Texas women have under federal law. The private law of action created by SB 8 as the enforcement mechanism is ultimately aimed at women and their rights. So it is unconstitutional, too.

Consider by way of comparison the federal Voting Rights Act. Imagine that the election officials of a state — perhaps a Southern state with a very high proportion of black voters — removes voting booths in all its precincts that happen to have a high black population. If the state can show that the impact on blacks is inessential, and that the acts can be regarded as an attempt to advantage Republicans and disadvantage Democrats (blacks, particularly in the South, vote overwhelmingly for Democrats), then the state has not violated the VRA. But that is because Democrats are not a protected class under the VRA. Blacks are. The state actions we have just imagined would be struck down if it could be shown that the state acted to abridge the voting rights of blacks in particular. Abridging access to voting on the basis of race is a violation of the VRA and the 15th Amendments.

Compare this with SB 8. Not only does SB 8 have the *effect* of virtually abolishing all abortions in the state by removing access to it: it actually declares that that is its purpose. But women during the non-viability period of their pregnancies are a protected class under the federal constitution. By removing a federally protected *privilege and immunity* (access to abortion) of this protected class, the state of Texas has acted unconstitutionally, just as state action designed to restrict the voting rights of blacks by limiting access to their voting is unconstitutional.

It bears emphasizing that the federal government’s lawsuit is double-barreled. It challenges the law’s purpose and effect (to deprive women in Texas of the abortion rights they have under federal law). The federal lawsuit also directly challenges the sole enforcement provision of the law, on the grounds that it abridges the privileges and immunities that women have under the due process clause of the 14th Amendment.

The U.S. Department of Justice has asserted standing to sue Texas, on the grounds that it is one of the foremost responsibilities of the federal government — and the responsibility of the Department of Justice especially — to secure and maintain the constitutional rights of all citizens in the country. The United States is therefore *obligated* to sue the state of Texas to protect the constitutional rights that some of its citizens have under federal law — namely women in Texas during the non-viability period of their pregnancies.

U.S. v Texas is also much broader in scope and more aggressive than WWH v Jackson in another important respect. WWH v Jackson sought to enjoin a possible civil lawsuit by a particular private citizen and anti-abortion activist named Dickson. But U.S. v Texas sues much more broadly: it bars the enforcement of the law by *any* agent, “including [*any*] private parties who would bring suit under the law.”

And who are those private parties? Answer: Every single resident of the state of Texas. That is because SB 8 is a private attorneys general act, and because that is exactly what such acts do. Accordingly, the words “would bring suit” in the federal government’s lawsuit actually amount to “could bring suit.”

Take, for example, the federal Clean Air Act. It has been described as follows:

Section 304 of the Clean Air Act enacted in 1970 was the first provision expressly empowering citizens to act as private attorneys general to enforce a federal statute. Every federal environmental statute enacted since 1970, except FIFRA, has included a citizen suit provision, and each provision has been modeled on § 304.

What does this amount to? Well, ordinarily a private citizen can only sue the government on constitutional grounds if she can establish standing by showing that a law that she deems to be unconstitutional aggrieves her *personally*. Absent a provision like § 304, a would-be plaintiff will not be granted standing to sue on constitutional grounds merely on the basis of a claim that an allegedly unconstitutional law harms the general or the public interest. There has to be a special nexus between the would-be plaintiff and the law that is challenged.

Laws and provisions like § 304 change this. Under § 304, for example, individuals and corporations can be sued for violations of the EPA by private citizens acting as private attorney generals even in the absence of such a special nexus. Private attorneys general provisions and acts thereby confer *state* power to act under state authority. The provisions and acts that confer this authority are in every respect acts of the state, and must pass the same constitutional tests and hurdles as any other state action.

You may not have known that you have the right as an American citizen to sue for alleged violations of federal pollution control laws. (I didn’t know I had the right.) But you do. Furthermore, you have this power whether you want to have that state-conferred enforcement power or not. (Many voters don’t like the EPA, or at least oppose many of its provisions.) The same is true of the citizens of Texas under SB 8: they have the enforcement power as long as SB 8 is valid law. (It has not yet been struck down.)

If the act under which the private enforcement authority is granted is constitutional, no problem. But SB 8 is *unconstitutional,* and that *is* a problem, because an unconstitutional law cannot confer litigation rights on anyone, including private citizens who have been given the right to sue in civil courts.

It is important to understand that in U.S. v Texas, the federal government has sued, besides all the government officials in the state, all the private citizens of the state as well. That includes those individual Texans (no doubt most of them) who never wanted to be private attorneys general with the authority to enforce SB 8 in the first place.

This is also going to place the state of Texas, and in particular its Attorney General, Kenneth Paxton, in an unusual position.

For the first time, the state of Texas itself has been named as a defendant in a lawsuit challenging the law, and Texas will have to defend SB 8 in federal court. It is the responsibility of the Attorney General of the state to defend a state law in court. One odd consequence of SB 8 and the federal lawsuit it has provoked is that when Paxton defends the law in court he will be wearing two hats: He will be appearing in his official capacity as the Attorney General of the state, and also in his capacity as a private citizen, to whom SB 8 has also conferred a right of private action in state civil suits. And the federal government has directly challenged that right.

All this is very odd, but then SB 8 is odd. But SB 8 isn’t just odd and deviant: it is actually infirm and constitutionally invalid. The U.S. Department of Justice has shown, clearly and dispositively, why that is the case.

We can start writing the epitaph for SB 8 now.

NOTE: I add some remarks about the issue of standing.

Would a pregnant woman in Texas have standing to sue the state on the same grounds the federal government has used (specifically on due process 14th Amendment grounds)? I believe she would now that the law has gone into effect, but not before that. (Before September 1, there would not have been a case and controversy.)

But the federal government is differently positioned, because it is uniquely positioned to challenge SB 8 on purely constitutional grounds — both for its violation of Supreme Court precedents and also for its violation of the due process clause of the 14th Amendment (restriction of the right of access to abortion services).

The federal government does not need a case and controversy to establish standing, and the federal government certainly has standing now that the law has gone into effect. But the federal government would also have had standing if it had entered the same lawsuit after the law was enacted and before it went into effect. That is because a law that violates the federal constitution is a federal offense just by being on the books, even before it is enforced, and even if it never is. (Proponents of SB 8 crowed that SB 8 would be effective even if no private suits were brought, because the mere threat of such lawsuits would compel abortion providers in the state to cease providing abortion services — which, by the way, is exactly what has happened.)