Abortion bounty hunters and legal standing

In an earlier post, I wrote about how the Texas anti-abortion law, by authorizing anyone at all to bring a lawsuit against anyone who aids someone in getting an abortion, has greatly expanded the legal notion of ‘standing’, that only those who have suffered a direct injury can seek redress from the courts. This is a reasonable requirement since otherwise the courts could be clogged with people bringing lawsuits on any and all matters whether or not they are at all affected by it.

The need for standing is not explicitly mentioned in the US constitution but over the past century, the US Supreme Court has read that requirement into Article III.

Over the last century, the Supreme Court has also established a system for determining when a person has standing to bring a claim in federal court. While the rules regarding standing do not appear in the Constitution, the Supreme Court based them on the authority granted by Article III of the Constitution and federal statutes.

“Standing” is the legal right for a particular person to bring a claim in court. A plaintiff must establish that they meet the legal criteria for standing. This generally involves demonstrating an injury and a direct connection to the defendant. If, for example, the plaintiff was injured in a car accident with the defendant, and the plaintiff alleges that the defendant was responsible for the accident, they most likely have standing to sue. Federal courts have developed their own rules for lawsuits that involve questions of federal or constitutional law.

But this applies only to federal courts and state courts can make their own determination of what constitutes standing and the Texas legislature has with this law, in the specific case of abortion, thrown the doors wide open to anyone to sue, and even encourages them by promising a reward of $10,000 if they win and stacking the law so that the plaintiff is very likely to win.

What is not clear to me is what happens if many people seek to sue the doctor or any other person accused of assisting an abortion in any way, however minor. Whose case will be taken up by the courts? Will all the plaintiffs be bundled together in one lawsuit? Does that mean that they have to split the bounty? What if supporters of abortion decide to sue and simply return the money to the defendant if they win? Since the bar for what constitutes an offense is so low under this law and the plaintiff can recover legal costs, there will be plenty of lawyers who will jump at the opportunity to find clients on whose behalf to file a lawsuit. One can envisage a scramble for be the plaintiff in any case, like a pack of hungry wolves competing to see who gets to devour a carcass.

This is the problem with bounties and deputizing anyone to act to claim it. It encourages bad faith lawsuits and vigilantism of the worst kind. The doctor who has dared abortion opponents to to sue by publicly announcing that he did an abortion after the law was passed is clearly seeking to challenge the law and perhaps expose all the unintended consequences. It will be interesting to see how this plays out.

The doctor has taken a grave risk in challenging this law. Anti-abortion zealots, those good religious people, have murdered abortion providers in the past and you can be sure that at the very least he and his family will be severely harassed.


  1. raven says

    This Texas law is a bounty hunting law.
    It is also an informer law, making anyone anywhere an informer on other citizens.

    This is something you would find in Stalin’s USSR or the East German commie’s Stasi.
    It’s estimated that 15% of the East German population were full time or part time informers for their secret police.
    Needless to say, bounty hunters and informers turning one group of citizens against another is not a sign of a healthy society.

  2. mediagoras says

    The U.S. Government has reportedly recovered over $63 billion under the False Claims Act, a statute that includes qui tam provisions allowing private individuals to sue on behalf of the federal government. If SCOTUS certifies a Texas abortion law case and happens to strike the law down, it will be interesting to see if and how it distinguishes the state qui tam provisions from those in the False Claims Act. Hopefully it would be based on abortion rights and not on the standing issue—but given the current composition of the Court, this seems a lot to expect. If the Court upholds the state law or declines to take any case where there is standing, then we can expect states with republican controlled legislatures to model their laws on the Texas law. Some will likely increase the restrictions.

  3. mediagoras says

    SCOTUS just took up the Mississippi case directly challenging Roe v. Wade. It’s set for December 1 this year.

  4. consciousness razor says

    If SCOTUS certifies a Texas abortion law case and happens to strike the law down, it will be interesting to see if and how it distinguishes the state qui tam provisions from those in the False Claims Act.

    To me, one obvious distinction is someone filing on behalf of the government in order to enforce one of its laws (to allow/enable whistleblowers, etc.), as opposed to someone filing in order to circumvent its laws.

    These bounty hunters can’t legitimately do that, because the state of Texas has no power to make federal laws subordinate to its own laws (Article VI). So, those federal laws should still be enforced, because nothing about them has actually changed with any of this nonsense. The Texas law should just be regarded as a big, unconstitutional power grab.

    If the Court upholds the state law or declines to take any case where there is standing, then we can expect states with republican controlled legislatures to model their laws on the Texas law.

    It’s not an “if-then.” You don’t have to wait. They’re not waiting, as I pointed out in Mano’s earlier thread (the highlighted example is from MO, related to guns and the 2nd amendment). Those things have just gotten very little attention compared to the uproar over Texas. But compared to the tons of other legislation at the state level which is all but ignored by most people every year, it’s probably pretty normal.

  5. mediagoras says

    @consciousness razor I agree that it should be treated as an unconstitutional power grab, but I do not have much confidence in SCOTUS seeing it that way. I understand other states aren’t waiting on their own abortion and other laws, but if SCOTUS happens to rule “favorably” on the Texas law first, then all the theocrats have a blue print for statutes that won’t likely be touched by the Court.

  6. Mark Dowd says

    …expose all the unintended consequences.

    These fuckers deserve no benefit of any doubt. They are not ignorant, they are malicious. I guarantee you every “problem” is an intentional design feature to make life as hellish as possible for anyone that might possibly be tangentially related to an abortion. It is deliberately broad, deliberately vague, and deliberately barbaric.

    None of the consequences of this law are “unintended”, unless it gets gamed to work in abortion providers favor somehow.

  7. lanir says

    I’m not particuclarly knowledgeable about the legal profession in any way. But from hearing lawyers explain how this law works it really feels like SCOTUS didn’t just drop the ball when they didn’t authorize an injunction on it, they really pulled some shenanigans that appear wildly incompetent. If some court legislature can essentially invalidate standing so trivially and have the highest court in the land turn a blind eye and let it go into effect, they’re sending a really mixed message.

    Would this work for anything else? I mean, forget gun control. Let’s open up lawsuits over greenhouse gas emissions or corporate polluters. Really make the moneyed interests scream bloody murder.

    And if they turn those down for magic reasons it would become obvious what the SCOTUS majority did here: abandon their duty to uphold law and order by letting some shambling mess become law solely because of their opinions about the subject involved. It feels like they want to take us back to the days of kings where you just had to please the king and you could do what you wanted.

  8. Pierce R. Butler says

    Mark Dowd @ # 6: I guarantee you every “problem” is an intentional design feature …

    Possibly you here overestimate the cleverness of the Texas legislative majority (though not their maliciousness). As others have pointed out, this “bounty hunter” mechanism might also be used in more liberal-minded states for “crimes” such as gun possession, pollution, or other activities sacred to yee-haw Republicans, which would surely make them, and baby Jesus, cry.

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