Torts (?) Arms Races: Abortion And Beyond

Abstract

The Supreme Court’s decision to eradicate constitutional protections for abortion has led to an array of new civil actions, from opponents and proponents of abortion alike, as both sides have turned to novel causes of action to promote their agendas. On the one side, states like Texas rely on expansive, bounty-hunter style causes of action that allow anyone—even totally uninjured, unaffiliated parties with no personal stake whatsoever in a particular abortion—to sue on loaded terms for statutory damages to the tune of $10,000. In response, blue states, with Connecticut leading the charge, have passed shield laws—including in some that create new causes of action of their own, authorizing those who lose Texas-style lawsuits to sue to reclaim any damages and expenses they had to pay out in Texas.

In other words, Texas created an expansive, novel cause of action that is designed, in part, to interfere with other states’ public policies—and in response, Connecticut created a new cause of action of its own, one that allows its courts to practically undue the financial impact of judgments under the Texas laws. A successful Texas lawsuit is, itself, the predicate for a lawsuit in Connecticut; the injury, for Connecticut law purposes, is the out-of-state lawsuit itself (or, to be precise, the judgment entered in it). Could Texas, in turn, create another new cause of action, allowing private suits to undo the impact of successful Connecticut lawsuits that itself aimed to undo the effects of an earlier Texas lawsuit? Could Connecticut respond by enacting another statute to undo the effects of Texas’s “undo the undo” law? This essay considers how both sides of this “arms race” dynamic fit into the private law ecosystem, and considers their broader cultural implications.

The bulk of this essay focuses on the example of abortion. But its implications reach more broadly, for there is reason to think that future legislatures will endeavor to model future causes of action on these, especially in high-salience “culture wars”-type issues. Part I sets out the basics of the novel causes of action on both sides of the abortion issue. Part II explores how each type of statute relates to the broader civil litigation landscape. Part III explores the broader costs of deploying novel private litigation in these culturally loaded settings. Setting substantive concerns about whether and to what extent abortion should be regulated or penalized, SB8’s enforcement mechanism has striking consequences for personal privacy: it means that compulsory civil discovery is available, and criminal procedural protections unavailable, in a set of lawsuits that can be brought by anyone about especially intimate affairs. This Part also widens the lens to consider the possibility that similar approaches will be used for other hot-button issues beyond abortion, and reflects on the cultural consequences of this move towards the “tortification” of cultural disputes.

Keywords: abortion, shield laws, SB8, torts, safe haven laws, legal theory, federalism, private law, Clifford Symposium