Texas opted for popular enforcement of Senate Bill 8 (“S.B. 8”), prohibiting abortion once a fetal heartbeat can be detected. Rather than enforcement by government officials, any member of the public may sue for statutory damages 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 such litigation to argue against broad revival, particularly with respect to controversial legislation. Lawmakers had good reasons for moving away from popular actions, which turn law enforcement into a profit-making enterprise.
The financial incentives that spur popular enforcement can lead litigants to engage in self-interested conduct inconsistent with the public interest, like 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 1736 and twentieth-century enforcement of the Sunday Observance Act 1780, English statutes imposing controversial legal restraints.
Where public opinion is already divided on the substance of an enactment, popular enforcement 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. Widespread litigation under the statute by financially motivated informers is likely to produce unintended consequences that cause even supporters of fetal heartbeat legislation to regret reliance on popular enforcement.
