On May 19, 2021, Texas enacted S.B. 8—also known as the Texas Heartbeat Act—which prohibits almost any abortion of a fetus once a heartbeat can be detected, effectively banning abortions after only six weeks of pregnancy. Just as controversially, S.B. 8 also specifies that it is enforceable exclusively through private civil actions, and it allows any private person to sue anyone who “performs,” “induces,” or “knowingly . . . aids or abets the performance or inducement of an abortion,” seeking injunctive relief and statutory damages of $10,000 per violation. The passage of S.B. 8 immediately led to calls for, and predictions of, copycat laws. Within weeks, legislators in several states had indicated their intent to pass identical bills, while others warned that the law’s enforcement mechanism could be applied to a range of lawful activities, from gun possession to facilitation of same-sex marriage. Indeed, states have already passed laws enabling individuals to file suit against schools that teach “critical race theory” or refuse to exclude transgender students from bathrooms or athletics. Numerous legal scholars, judges, and commentators have decried this “unprecedented” enforcement mechanism, especially the creation of a private cause of action for uninjured individuals with no connection to the person seeking an abortion. Critics have likewise labeled as unprecedented the fact that S.B. 8 enables plaintiffs to file suit anywhere in Texas, denies defendants certain well-recognized affirmative defenses, compels losing defendants to pay plaintiffs’ fees and costs, and provides a “bounty” for successful plaintiffs.
In fact, the only truly unprecedented aspect of S.B. 8 is that it entirely displaces public enforcement with private enforcement. Virtually every other part of its enforcement scheme—the deputization of uninjured private citizens, the broad venue provision, the creation of civil “bounties,” the disallowance of certain defenses, and the provision for plaintiffs’ fees and costs—enjoys ample precedent. Beginning in the nineteenth century and continuing throughout the twentieth, state legislatures across the country passed hundreds of laws enabling any private citizen, regardless of personal injury or interest, to bring suit to remedy a range of supposed social ills—from the sale of liquor to the sale of sex, from air and water pollution to the unlicensed practice of dentistry. Although these laws differed considerably, their hallmark was their empowerment of uninjured individuals to bypass state authorities and directly use the machinery of the courts to remedy something the legislature considered a harm to the public at large.
In this Article, I argue that S.B. 8 is best understood as the latest of these laws, albeit taken to a new extreme in its foreclosure of any public enforcement. Drawing deeply on original archival research, this Article provides the first comprehensive history of these laws, which I call “moral nuisance abatement statutes.” The authors of these statutes took inspiration from the common law of public nuisance, but they eliminated its “special injury” requirement, instead allowing uninjured individuals to bring suit to abate so-called nuisances. Although citizen-suit provisions are common in state and federal statutes, moral nuisance abatement statutes go further than any other private enforcement schemes, not just by dispensing completely with the demand of injury but also by shifting burdens of proof, foreclosing common defenses, and providing financial incentives for plaintiffs—all in the name of more effectively attacking a supposed cancer on the commons. Moral nuisance abatement statutes—laws such as S.B. 8—are likely to spread. This Article thus historicizes these statutes, clarifying their past, claiming for them a significant present, and providing some clues to predict their future. The purpose of this analysis is not to minimize the real ways that S.B. 8 departs from earlier moral nuisance abatement statutes. Rather, its point is to identify these statutes as belonging to a common class, which better enables us to analyze their spread, impact, similarities, differences, and power.
Scott W. Stern,
Moral Nuisance Abatement Statutes,
Nw. U. L. Rev.