Originally posted to SSRN.

Abstract

Texas opted for popular enforcement of Senate Bill 8 (S.B. 8), prohibiting abortion once a fetal heartbeat can be detected. In an effort to prevent pre-enforcement judicial review, the legislature precluded enforcement of the statute by government officials. Instead, any member of the public may sue for statutory damages of at least $10,000 from any person who (1) performs an abortion violating the statute, (2) knowingly aids or abets such an abortion, or (3) “intends” to perform or aid and abet such an abortion.

The cause of action authorized by S.B. 8 is a “popular action,” a once common method of statutory enforcement closely related to qui tam litigation. This article draws on the history of qui tam and other popular actions to argue against broad revival of popular enforcement, particularly with respect to controversial legislation. Lawmakers had good reasons for moving away from reliance on popular actions, which turn law enforcement into a profit-making enterprise.

Legislation authorizing a popular action includes a built-in conflict of interest. The “informer” who files the action represents the communal interest in law enforcement, but simultaneously pursues private financial gain. The financial incentives that spur popular enforcement lead to self-interested practices that undermine the public interest, such as targeting technical statutory violations tangential to the legislative objectives, extorting secret payments to suppress litigation, encouraging violations of the law to generate additional bounties or delaying enforcement so statutory penalties can accumulate.

Practices like these characterized popular enforcement of the Gin Act of 1736 and twentieth century enforcement of the Lord’s Day Observance Act of 1781, English statutes imposing controversial legal restraints. Where public opinion is already divided on the substance of an enactment, popular enforcement by self-interested informers tends to inflame pre-existing social conflicts and undermine public respect for the law.

S.B. 8 is prone to abusive, marginal and pointless enforcement actions analogous to those observed in our two English case studies. The Texas legislation creates numerous opportunities for self-interested litigation targeting individuals and companies with little or no connection to the state’s abortion industry and the statute makes it difficult to defend an action, even if the defendant complied with all statutory requirements. Widespread litigation under S.B. 8 by financially motivated informers is likely to produce unintended consequences that cause even supporters of fetal heartbeat legislation to regret reliance on popular enforcement.

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