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The Procedural Puzzles of SB8, Part III: Suing Private Plaintiffs

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Howard Wasserman and Charles Rhodes | 9.13.2021 9:59 AM

Our second post explained why abortion providers and reproductive-rights activists cannot bring offensive pre-enforcement actions in federal court against any state official. But one target for offensive litigation remains—the private individuals deputized by SB8 to enforce the law through private civil actions. The plaintiffs in the Whole Women's Health suit recognized this option; they included claims against Mark Lee Dickson, the head of East Texas Right to Life, an advocate for the law who urged people to bring private suits as a way to stop abortion in the state.

An abortion provider would sue an actual or potential SB8 plaintiff in federal court, asking the federal court to enjoin "any person" from pursuing a state-court action—the same process as an offensive action against a responsible executive official. The key is that "any person" who brings an SB8 action must act "under color" of state law for purposes of a § 1983, the cause of action for constitutional claims. Does he?

We begin with the state-action argument that has been bandied but that does not work—Shelley v. Kraemer. Shelley held that the Fourteenth Amendment prohibits enforcement of racially restrictive covenants. Judicial involvement in adjudicating the action to enforce that covenant constituted sufficient state action for Fourteenth Amendment purposes. But Shelley does not stand for the proposition that Kraemer, the person who brought the state lawsuit to enforce the restrictive covenant, became a state actor or could be sued for bringing that state-law action. Rather, it allowed Shelley to raise the Fourteenth Amendment as a defense in the enforcement action—and obtain SCOTUS review if state courts rejected the........

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