Has Texas's SB-8 Turned us all just private bounty hunters now?

Not Exactly. Though SB-8 is remains highly problematic legislation

In response to Texas’s enactment of SB-8 allowing private suits against those who seek abortions and California Governor Gavin Newsom’s promise to enact similar laws against gun owners, an astute conservative Republican political operative in California recently opined:

I’m going to need a nice little thought piece on how 2021 became the year of the legal bounty hunters. Like, who’s behind all this? Is this what they teach in law school now? How does everyone suddenly know the way to circumvent judicial review? And why is it o.k. to make ordinary citizens into legal bounty hunters? What are the repercussions?

It’s certainly something to consider. Many on the right are now wondering whether some constitutional rights they cherish could be limited by Democratic state legislatures.

Are we all now morphed into private bounty hunters? I don’t think so.¹

Is Texas’s anti-abortion law still problematic? Yes.

Let’s break this down. Because most people who are not constitutional lawyers are rightfully confused about what is transpiring with the Supreme Court’s ruling on the new Texas law.

Texas has passed SB8, a law that allows private citizens to take court action against women who seek abortions after 6 weeks of pregnancy and anyone who attempts to help them get an abortion.² Most troubling for pro-choice advocates is that they generally cannot challenge this law’s constitutionality in court, leaving the law in place, allowing private lawsuits against abortion and effectively denying women a long held constitutional right.³

With the United States Supreme Court limiting the ability of pro-choice organizations to sue over SB-8, it is likely that other anti-abortion states will enact these laws themselves.⁴ In retaliation, Gavin Newsom has suggested creating similar legislation allowing private citizens to sue gun owners for what they might consider their own Second Amendment protected gun rights.⁵

You might be wondering, how does this work exactly?

The United States Constitution does not allow Americans to take states to court.⁶ States must consent to be sued even when they are accused of violating United States federal law or the United States Constitution.⁷ Even Congress lacks the authority to allow a state to be sued directly.⁸ Only the state can consent to allowing themselves to be sued.⁹ Some states, like California, have consented to being sued in court by its citizens.¹⁰ Many others have not¹¹. 

How then are Americans able to sue state governments for violation of the federal constitution?

The Supreme Court has held that while one can’t sue the state, one can sue the state’s official who carries out enforcement of an unconstitutional law.¹² As the Supreme Court explained, “While a State can act only through ‘the officers or agents by whom its powers are exerted,’ actions by an agent or officer of the State are encompassed by the Fourteenth Amendment for, ‘as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.’”¹³

Basically, someone who works for the state can be sued even though the state can’t. However, under this doctrine, the Supreme Court has exempted state courts from being sued over carrying out unconstitutional laws.¹⁴ And this inspired the Texas State Legislature.

In SB 8, Texas created an anti-abortion law that state officials do not carry out.¹⁵ Pursuant to the rules of the Eleventh Amendment, Planned Parenthood did not sue the State of Texas to stop it and instead brought the suit against those who would carry out the law.¹⁶ But that raised an important question. If the state does not allow its officers to enforce the law, who can be sued to stop enforcement of the law?¹⁷

Here, Planned Parenthood attempted to bring a suit against a state court judge, a state court clerk, the Attorney General of Texas, the executive directors of several Texas government commissions, and one private citizen who intends to bring lawsuits under SB 8.¹⁸ But the Supreme Court rejected the challenges in nearly all cases, holding that Planned Parenthood cannot bring suits against the Attorney General, the state court judges, the state court clerks, and the private citizen.¹⁹

Thus, pro-choice groups cannot bring a lawsuit against this law because the United States Supreme Court has held that there is no one to sue.²⁰ Thus, the law remains on the books.²¹ And private citizens, acting as bounty hunters, can go to court against those who exercise their constitutional right to an abortion and anyone who might help them exercise that constitutional right.²²

But does this mean that we are all becoming private citizen bounty hunters? Or that our constitutional rights can be circumvented simply by writing laws that create private rights of action while prohibiting public officials from carrying them out?

I don’t think so.

In 1948, in Shelley v. Kraemer, the United States Supreme Court held that courts could not enforce racially restrictive covenants for renting and selling homes.²³ Today, such restrictive covenants are permanently illegal and cannot be created when renting or selling homes.²⁴ But back then, they existed in full force for many residential neighborhoods throughout the United States.²⁵

In Shelley, the United States Supreme Court explained that private parties could enter into agreements with one another to restrict the sale and rental of homes to non-white people without running afoul of the Fourteenth Amendment of the United States Constitution.²⁶ The Court reasoned that Fourteenth Amendment did not apply to private individuals.

However, because of the Fourteenth Amendment Equal Protection Clause, courts could not legally enforce these agreements.²⁷ As the Court held, courts are state actors and are restricted by the 14th Amendment Equal Protection Clause.²⁸ For a court to enforce a racially discriminatory contract would be an act of the state engaging in racial discrimination, clearly prohibited by the Fourteenth Amendment Equal Protection Clause.²⁹

As the United States Supreme Court once explained, “A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, . . . denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.”³⁰

A New Hampshire estates and trusts case also demonstrates this example. A man had left a generous scholarship in his will for a public school student for a “worthy Protestant boy” to be administered by the local public school district.³¹ A superior court judge used his equitable powers to reform the will, removing its racial, religious, and gender preferences, and the New Hampshire Supreme Court affirmed.³²

The court held that doing otherwise would violate the equal protection guarantee of the New Hampshire Constitution.³³ By administering and carrying out a private will, the state court and public school district engaged in state action thus bringing it under the state constitution.

Thus, when it comes to states authorizing private citizen bounty hunters to sue other citizens for exercising their constitutional rights, it doesn’t mean that the right of the citizens is gone. Although the United States Supreme Court may overrule prior precedent, the Constitution provides a right for a woman to terminate her own pregnancy before viability of the fetus.³⁴

The Constitution also provides a right to individual gun ownership.³⁵ A state may authorize lawsuits against citizens for the exercise of these rights. But state courts are still state actors under the Constitution and citizens still retain their Constitutional rights.³⁶ And state courts are still bound to follow and enforce the Constitution.³⁷

So why then are so many concerned with Texas’s SB 8? 

For one thing, it does not conform to the current constitutional standard on abortion as held by the Supreme Court in Roe and Casey by purporting to make abortion illegal after 6 weeks regardless of viability.³⁸ But the main problem is that it helps restrict a constitutional right by limiting immediate judicial review of the law.³⁹

Why that is so problematic is because the threat of litigation can make people decide to not exercise that constitutional right.⁴⁰ If people fear the expense of a lawsuit over using a constitutional right, they may decide to avoid it.

Moreover, lower court judges can make mistakes. Sometimes, lower court judges will enforce unconstitutional laws and make orders that are in defiance of the law. There is a reason that appeals courts exist. But people who are ruled against do not always have the luxury of appealing a bad decision. And in the case of women seeking abortion, many might simply be unable to because of economic reasons.

There is an area of law that is analogous to Texas’s SB-8 law that shows a constitutional right can still exist but private action can be problematic: Defamation law.

Private citizens can bring lawsuits against others for libel and slander.⁴¹ However, while the First Amendment of the United States Constitution does not apply to private citizens, when private citizens sue other citizens in court for libel and slander, courts must rule on these cases in a way that is consistent with First Amendment principles.⁴² It is irrelevant that a lawsuit for defamation is between private parties, because the court that enforces the judgment in the lawsuit, the court is a state actor bound by the First Amendment.⁴³

But can private lawsuits for libel and slander be problematic?

Unfortunately, yes. Because people will often bring lawsuits for defamation in order to stop people from exercising their free speech rights.

In California, the state enacted a law to help protect against lawsuits brought against those for exercising their free speech rights protected under the First Amendment and Article I, Section 2 of the California Constitution known as the Anti-SLAPP law.⁴⁴ The California State Legislature specifically found “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”⁴⁵

The law recognizes that lawsuits are expensive and time-consuming. The threat of them can be used to stop people from exercising them. This is why Texas has enacted SB-8. Those who might consider getting an abortion or those who assist others get an abortion might not because they might face costly litigation that leads to economic ruin.

Texas goes a step further in SB-8. They purport to overturn the United States Supreme Court’s abortion rules in Roe and Casey. In comparison to defamation, it would be as if Texas passed a law allowing defamation lawsuits to be brought in a manner that conflicted with the Constitution. It would not be the first time though that a State Legislature or even Congress attempted to legislatively overturn a constitutional protection and failed.⁴⁶ However, the State of Texas cannot overturn Roe and Casey anymore than Congress could legislatively enact a law that claimed to overturn Miranda warnings.⁴⁷

The United States Supreme Court’s ruling does not turn us into a nation of bounty hunters. Constitutional rights still exist. But Texas’s SB-8 remains highly problematic because it can restrict the exercise of constitutional rights.

1. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.