Countersuing Litigants Under the Texas Anti-Abortion Law

The U.S. Supreme Court’s unwillingness to step in to prevent Senate Bill 8 from taking effect—Texas’s patently unconstitutional law banning nearly all abortions in the state—has rightfully garnered widespread attention, outrage, and anguish.

S.B. 8 creates a series of quasi-criminal prohibitions on abortions to further Texas’s stated interest in “protecting the health of the woman and the unborn child.” For instance, the law says that a “physician may not knowingly perform or induce an abortion on a pregnant woman if the physician has detected a fetal heartbeat.”

But S.B. 8 isn’t a criminal law; it’s a civil prohibition that “shall be enforced exclusively through private civil actions.” And anyone can bring such private civil actions to obtain a minimum of $10,000 in statutory damages against anyone who performs, or in any way aids in the provision of, an abortion.

A Categorically Different Restriction

The lack of a state enforcement mechanism is what makes S.B. 8 categorically different from other abortion restrictions. There’s also no secret as to why Texas wrote the bill like this: Whereas a criminal statute can be facially challenged before it’s ever enforced, a statute creating a private right of action presents a more complicated picture.

Texas lawmakers created this liability scheme to try to make it impossible to enjoin the law before it went into effect. So far their efforts paid off in front of the Supreme Court on Sept. 1 and the Fifth Circuit on Sept. 10. (On Sept. 9, the Department of Justice sued Texas to try to block the law.)

But there is a way to hold individuals who bring suit under S.B. 8 accountable to the Constitution. By assigning enforcement of prohibitions on abortions exclusively to private litigants, and by attaching significant financial encouragement to private litigants to bring suit, Texas has delegated its law-enforcement authority to private parties.

When those private parties exercise their law enforcement function, they should be considered to act under color of law, and thus be suable under 42 U.S.C. § 1983. Anyone sued by a private litigant under S.B. 8 could immediately bring a countersuit in federal court, or file a counterclaim in the state court action, against the private litigant under 42 U.S.C. § 1983 for violating the right to access abortions set forth in Roe v. Wade and its progeny.

The Supreme Court has recognized that, under certain circumstances, private individuals can be considered state actors, and thus constrained by the Constitution, when their conduct is chargeable to the state. Given the unique liability scheme created by S.B. 8, private litigants who sue to enforce S.B. 8 should be considered state actors.

Supreme Court Precedent on Liability

The Supreme Court’s precedent on when a private party should be liable for constitutional violations generally looks to two factors: (1) whether the claimed constitutional violation was caused by the exercise of a right, privilege, or rule of conduct created by the state, and (2) whether the private party’s conduct is chargeable to the state.

Here, the first factor is easily met: Being sued under S.B. 8—a state law—is the cause of harm. As for the second factor, the Supreme Court has acknowledged that a private party’s actions can be attributed to the state when the state has provided significant encouragement to the private party to take the action at issue. The court has also said that a private person can be deemed to act under color of law when he exercises a power that is traditionally the exclusive prerogative of the state.

Those standards are satisfied here. Texas passed S.B. 8 so that private litigants would bring suit to enforce its provisions. It attached significant encouragement, through a minimum $10,000 bounty, to private litigants.

A private party suing under S.B. 8 has not sustained any injury; he seeks solely to enforce state law. He thus stands in the shoes of a state prosecutor. The combination of the state’s significant encouragement and its delegation of the law enforcement function should render private litigants under S.B. 8 liable for constitutional violations.

Countersuing for Money Damages

Countersuits for money damages by the targets of S.B. 8 enforcement actions would ensure that anyone who seeks to interfere with Texas women’s constitutional right to reproductive freedom is held accountable for their unconstitutional conduct.

Notably, private litigants would be unlikely to be able to raise the defense of qualified immunity; even if they could, qualified immunity does not protect defendants who seek to enforce flagrantly unconstitutional state laws.

Through S.B. 8, Texas has delegated the law enforcement function to private parties specifically to immunize the state’s lawless action from federal judicial review. But if private actors take up the mantle of enforcing the state’s anti-abortion laws, they must also take up the liability for violating rights under the color of law.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Georgina Yeomans joined the NAACP Legal Defense Fund as assistant counsel in 2021. Prior to LDF, she was an associate at the labor law firm Bredhoff & Kaiser PLLC, where she represented labor unions and their members in litigation and administrative proceedings, focusing on public-sector labor unions.

Ashok Chandran joined LDF as assistant counsel in 2019. Prior to LDF, he was an associate at the civil rights law firm Emery Celli Brinckerhoff & Abady LLP, where he represented victims of housing discrimination, police misconduct, and prison abuse. He also represented plaintiffs in complex institutional reform litigation.