by on By Poppy Alexander and Chris McLamb*
During the oral arguments heard by the Supreme Court last week regarding Texas’s anti-abortion statute (SB 8), a significant part of the back-and-forth was devoted to whether the law can be compared to a whistleblower statute. SB 8 enlists private citizens to report other citizens for exercising their constitutional rights––a far cry from whistleblower laws that enlist private citizens to go after fraudsters who cheat the government and the public. Yet this line of questioning, tangential as it may seem, helped expose the Texas law for what it is: a brazen attempt to circumvent Roe v. Wade.
The Texas law attempts to escape court oversight of its six-week abortion ban by delegating all authority to enforce the statute to individuals, encouraging neighbors to report neighbors by promising a reward of $10,000 or more in cash. This bounty statute is concerning for a host of reasons, starting with its obviously unconstitutional limitations on the right to choose. But another concerning element was crystallized during oral argument by the once reticent, now loquacious Justice Clarence Thomas.
Not once, but twice, during oral arguments, Justice Thomas asked the Texas Solicitor General whether the law should be considered a “private attorney general” statute. On a facile level, this sounds plausible. A private attorney general statute is exactly what it sounds like—a delegation of some degree of the state’s law enforcement powers to individuals who have the right to bring cases in the state’s name. But Justice Thomas’s questions forced Texas to confront the disingenuous legal stunt it is trying to pull off.
The architects behind the Texas law have openly admitted they that they modeled SB 8 on these private attorney general statutes. The most longstanding and successful example of this kind of law is the False Claims Act (FCA), which allows any whistleblower who knows of fraud against the government to step into its shoes and sue the defendant on its behalf. Texas State Senator Bryan Hughes explicitly stated that Texas’s state Medicaid False Claims Act provided the “concept” for SB 8’s authorization of private individuals to bring a claim related to an alleged violation of law.
But, despite Senator Hughes’s stated inspiration, the laws fundamentally differ. The FCA is the quintessential example of private-public partnership, where the whistleblower works closely with the government to investigate and root out illegal conduct—fraud. The government maintains control of the investigation and any court case that may result from it. The whistleblower has certain rights as part of her role in bringing the claim in the first place, but the government ultimately retains authority over key prosecutorial decisions. The whistleblower assists rather than replaces government lawyers. The virtues of such an arrangement are plain to see: any other scenario would run afoul of the basic separation of powers.
SB 8 is likewise a delegation of the state’s powers. The law is designed to implement Texas’s preferred (but unconstitutional) policy against abortions beyond six weeks. But unlike the FCA, which contains careful rules to ensure the government maintains control of the action, SB 8 lacks any.
Instead, SB 8 heavily incentivizes private suits to enforce the ban, while washing its hands of whatever comes next. Texas abandoned these critical elements of the FCA for entirely cynical purposes. By fully privatizing the enforcement of the State’s prohibition abortions beyond six weeks, the Texas legislature deliberately sought to prevent federal challenges to its unconstitutional law. And while other private attorney general statutes protect against illegal conduct such as fraud, SB 8 attacks the constitutionally protected right to abortion.
The fact that Justice Thomas even drew this comparison— twice—suggests that he either fundamentally misunderstands the differences between the FCA and SB 8’s bounty provisions or that he knew exactly what Texas was trying to do here. Either way, by asking these questions, Justice Thomas exposed how Texas has mangled the traditional private-enforcement mechanism in its audacious attempt to avoid judicial scrutiny of its unconstitutional abortion ban.
Texas’s gamesmanship became even clearer following its lawyer’s muddled response to Justice Thomas’s questions. Texas’s Solicitor General claimed that SB 8 was not a private attorney general statute—despite the Texas senator’s public statements that it was modeled on such laws—because it is premised not on the state’s desire to ban abortion, but on the supposed injuries suffered by the citizens bringing SB 8 claims. Supposedly, those individuals suffer a “tort of outrage” caused by people simply exercising their constitutional rights.
This answer rightly has been mocked as a laugh line. But what else was Texas to say?
The truth is that a citizen seeking a bounty on a person for exercising their constitutional rights has no actual injury to give rise to the right to seek a remedy in court. That makes them true agents of the state. But if Texas admitted as much, the law would have met a swift and near-certain demise in federal court.
To be sure, FCA whistleblowers suffer from outrage, though not at their fellow citizens for doing something lawful they don’t like. They are outraged that someone is cheating the government. And they know that the purpose of the law is to ensure that the government has the information and resources it needs to right a wrong. That is the foundation of a real private attorney general statute. In contrast, SB 8 is not an instrument for public good, but rather a Frankenstein law engineered solely to nullify the constitutional right to an abortion. Rather than a “private attorney general” statute, it is a private vigilante law.
*Poppy Alexander and Chris McLamb are attorneys in the whistleblower practice of Constantine Cannon LLP.