Monthly Archives: September 2021

Standing to Sue: A Brief Post-Script

Over the years, I have spoken the following words to numerous American Government classes:

If you go into the legal profession, and if you are ever working for an interest group and using litigation to achieve policy goals from court rulings, make sure that you have a plaintiff with an actual “standing to sue,” because no matter how good your arguments are, the case can get thrown out if you don’t have that.

I’ve been reflecting on that in relation to the new Texas law, because that law totally subverts that concept by making it possible for anybody who disapproves of abortion to file suit against an abortion doctor, or against anybody who aids and abets an abortion in any way (like giving a woman a ride to the abortion clinic, or paying for the abortion) and collect $10,000 for doing so.  The question is, how can this be possible?

I’m looking into the question, so this post is merely a progress report on what I’ve found so far.  What I’ve found so far is that the Supreme Court has made itself very clear on “standing to sue,” but only (as far as I know) as far as federal cases are concerned.  In the 2016 decision Spokeo v. Robins, the Court noted that Article III of the Constitution assigns federal judicial power over “cases” and “controversies” and says that limiting the power of the judiciary to resolving cases and controversies is crucial to preserving the balance of power among the three branches and the limits of the judicial branch’s power. Justice Alito, in that ruling, wrote:

Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood…. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong….

Our cases have established that the “irreducible constitutional minimum” of standing consists of three elements…. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.

Alito cites a number of precedents, most notably Lujan v. Defenders of Wildlife (1992) and Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000).

But again, that’s just for the federal courts.  There are two questions that I don’t know the answer to, in this regard:  (1) Is there any case law precedent that empowers the federal courts to apply this principle to state courts?  (2) Is there a body of case law precedent at the state level in Texas that would facilitate getting this law challenged in a Texas state court on the basis of “standing to sue”?  I’m still working on how to find out those two things.  But in any event, it certainly goes against years, probably centuries, of judicial tradition for there to be a law that empowers any ordinary person to file suit against another on the mere basis of personal disapproval of an action committed by that other person.

A New Chapter Begins in the Abortion Fight

First, the basics of the new Texas law:

  1. It’s illegal to perform an abortion in the state, or to aid and abet someone getting an abortion in the state, after the sixth week of pregnancy.
  2. State authorities are not the enforcers, and it’s not the criminal courts that will hear the cases.  Rather, it’s for the civil courts.
  3. Now, here is the kicker:  anybody can file suit against an abortion provider who violates this law.  If the plaintiff prevails, the defendant is liable for $10,000 in damages plus court fees.  (But only one plaintiff is entitled to sue for one abortion.)
  4. The woman who gets the abortion is not liable, but if someone pays for her abortion, either an insurance company or a friend, the payer is liable for aiding and abetting.

The Supreme Court refused to block the law from going into effect.  In a 5-4 decision, the majority made clear that this was not a ruling on the merits of the law, but rather, the Court declined on procedural grounds.  Here’s an excerpt:

[F]ederal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves…. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention…. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.

This law would appear to be constitutionally problematic on a number of counts.  Obviously, it totally flies in the face of the 1973 Roe v. Wade decision, which ruled that states can’t interfere with the right to an abortion during the first trimester, and can only regulate abortion in the second trimester for reasons of medical safety.  Subsequent rulings have struck down laws that placed an “undue burden” on women seeking abortions.  But there’s another big problem that should get some attention from the courts:  What ever happened to “standing to sue”?  One of the basic textbook principles of the judiciary is that you can only file suit if you can show that you yourself have been injured by the action that you’re challenging.  It takes more than an opinion to justify filing suit.  But according to this law, any anti-abortion activist can bring any doctor to court (or any friend of a woman getting an abortion who helps her pay for it) and get $10,000.  Again, what ever happened to “standing to sue”?

It’s not clear what the ultimate fate of this law will be.  At the moment, abortion providers in Texas seem inclined to simply obey the new law, much as they deplore it.  If the law is going to be challenged effectively, it’s probably going to take a doctor willing to break the law, be sued, receive a judgment ordering to pay $10,000, and then appeal it to the federal courts.

But it needs to be remembered that there are six justices on the Court who disapprove of Roe v. Wade, and at least five seem in favor of overturning it.

There are other states with tough new abortion laws that got passed after Trump appointed his second justice, Brett Kavanaugh, to the Court.  The Supreme Court has already agreed to hear a case involving Mississippi’s fifteen-week law.

Full text of the Texas law

Full text of the Supreme Court decision and the dissenting opinions

Article on the Texas law at SCOTUSBLOG, September 1, 2021

Article on the Mississippi law and related case at SCOTUSBLOG, May 17, 2021