—Matthew Reid Krell, Lecturer of Law, University of the West Indies Cave Hill
As I write this, a puzzling event has occurred in the United States: the law governing access to abortion has changed. But it changed without Congress enacting a law, without the Supreme Court issuing a ruling, and in fact, without anyone taking any action at all. It changed through inaction, and through the creativity of conservative lawmakers and the confusion of judges. Without “changing” abortion doctrine one bit, American judges have drastically changed the landscape of reproductive rights and opened up a new era in American legal doctrine.
This piece isn’t about the politics of abortion in the United States and on the Court. Nor am I here to speculate on any secret motivations the majority justices may have had. Instead, I want to take the majority at their word and raise some issues embedded in the 400-word order that ended thirty years of incremental abortion rollbacks in one fell swoop. Specifically, I want to discuss the use of procedure to control outcome and evade the mechanisms that developed to place limits on state action. This approach to law represents a dangerous development in American procedural and administrative law that other systems should shun. Instead, judges and lawmakers looking to comparative approaches should prefer other answers to these questions.
Some background for non-American readers: in May of 2021, the state of Texas enacted a law, referred to as Senate Bill 8 (SB8), that banned abortion after six weeks of pregnancy. The net effect of this is to ban almost all abortion in Texas, as most individuals who become pregnant will not know it until their pregnancy has developed beyond six weeks. Under existing American precedent, this action is blatantly unconstitutional, and enjoining its entry into force is a very simple and straightforward application of existing caselaw.
But existing caselaw never got applied. The day before the court of first instance was to conduct a hearing for a preliminary injunction, the court of appeals halted the hearing and stayed all further proceedings. The Supreme Court affirmed this decision, leaving no opportunity for the law to be prevented from entering into force.
So why did abortion advocates never get their chance to be heard in court? If this case is so easy, why did SB8 go into effect on Wednesday?
The answer lies in the procedural stance of the case challenging SB8 and “one weird” trick” the Texas legislature used to evade review of their actions. Because the challengers were attempting to enjoin the law before it went into effect, they sued state officials, arguing that they had no power to enact or enforce SB8. But the defendants had anticipated this, and the state of Texas had implemented a procedural irregularity in SB8 that they claimed immunized them from suit.
Instead of imposing a state-assessed and –enforced penalty for newly-illegal abortions, SB8 creates a private right of action against those who “aid and abet” illegal abortions. This means that private citizens can sue anyone who helps a patient obtain an abortion beyond the six-week cutoff. The doctor who performs it, the receptionist at the clinic, the Uber driver who drops the patient off at the clinic: all are proper defendants who are potentially liable for $10,000 in liquidated damages to anyone who files suit. Because of this, the state officials argued that they were not proper defendants because an injunction against them would not prevent enforcement of the law.
This matters because unlike in many other places, the United States imposes relatively strict standing requirements even on constitutional claims. While in Israel the High Court of Justice requires no assertion of standing to challenge an unlawful state action, and in Ireland and the Commonwealth nations locus standi requires only that the plaintiff be harmed, in the United States the plaintiff must be able to allege that they were or imminently will be harmed by the defendant’s actions. A speculative injury is not enough, or one enacted through the wrong defendants’ actions. Thus, while the state can be expected to enforce its own laws, and therefore a plaintiff can allege injury if the state is enforcing the laws, a private right of action may never be realized. Any injury is speculative (according to the state of Texas, anyway).
Using the private right of action to reduce the need for administrative enforcement capacity has a long and storied history in American law. With the exception of industrial relations law, all employment-law actions allow for a private right of action (as long as the enforcement agency passes on its own action), and many consumer protection laws and environmental laws allow for private lawsuits when the state apparatus chooses not to get involved. While the scope of this choice relatively unique in common-law administrative law, it’s hardly unheard of. Many Caribbean jurisdictions provide for private actions against employers brought in a special tribunal, as do Canadian jurisdictions in certain issues.
The difference between these other American private rights of action and SB8 is the disconnection between a plaintiff’s personal harm and the right of action. Every other private right of action requires the plaintiff to have actually suffered harm. SB8 attempts to assert that the mere fact of an illegal abortion harms every person in the country sufficient to confer standing. Whether that’s a legal theory that will carry water on the merits remains to be seen; but it was enough to convince judges that wanted to be convinced that preventing the state from taking action would be fruitless.
In other words, SB8 hijacks a procedural hurdle (the requirement for locus standi) and turns it into a policymaking tool (to shut down abortions because providers fear being sued into bankruptcy). This is an example of what some scholars refer to as the trans-substantivity of procedural law – the way that process shapes outcomes. While American law is rife with these examples, other systems have them as well, including both Canadian and Israeli constitutional processes that allow the legislature the final say in whether a given law will continue notwithstanding a court’s assertion of its unconstitutional status.
Ultimately, the rules that govern decision-making affect the outcomes that occur. Everyone is in agreement that had Texas taken enforcement of SB8 onto itself, that the law would have been unenforceable. Similarly, in a judicial-review system with less stringent standing requirements like Ireland’s or Canada’s, SB8’s outsourcing of enforcement would not have worked to prevent meaningful review of the merits of the issue. But the combination of the private right of action with the American demand that this defendant have concretely injured this plaintiff means that until a lawsuit is brought under SB8, that no claim is actually ripe.
Finally, there’s an issue of diffusion. Several states with legislatures of similar bent to Texas’ have promised to pass bills similar to SB8 in the very near future. Some would argue, and have argued, that progressives should enact similar bills to outlaw their own preferred regulatory hobbyhorses like gun control or pandemic mandates. Non-American systems that consider American law as one of many exemplars to draw from may see this as a path to increase administrative capacity without having to make state expenditures.
I would caution these lawmakers. Even after the Supreme Court found no issue with the enactment of SB8, Texas state courts have been slowly enjoining the most likely players in SB8 litigation against bringing lawsuits under the law. The process of turning private citizens into administrative-enforcement agents is one that has potential (as the Equal Employment Opportunity Commission can attest) but also pitfalls (as the Environmental Protection Agency has found). Similarly, the use of procedural rules as proxies for policymaking is an important experiment that raises questions about how to manage unintended consequences. Lawmakers should consider these possible downstream consequences before becoming “one weird trick” to solve their problems.
Suggested citation: Matthew Reid Krell, One Weird Trick To Defeat Judicial Review: Process as Outcome, Int’l J. Const. L. Blog, Sept. 12, 2021, at: http://www.iconnectblog.com/2021/09/one-weird-trick-to-defeat-judicial-review-process-as-outcome/