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Citizens can sue abortion providers for alleged violations, and plaintiffs will receive $10,000 from the accused if successful. The law also impacts anyone who "aids or abets" an abortion, which could potentially include a driver who unknowingly drove a woman to an abortion clinic.

Source: https://www.cnn.com/2021/09/04/economy/companies-against-texas-abortion-law/index.html

If the source is correct, what is there a general rule of thumb or reasoning that determines who can / can not litigate for said $10K in a Texas court room? Is there Federal law that governs who has standing? or is it solely at the discretion of TX law? I am trying to understand: with respect to standing, is this a state decision or does national law somehow trump state law.

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  • It appears to be bounty. Anyone who can prove violations can litigate.
    – Greendrake
    Sep 5 '21 at 13:36
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Standing requirements are different in state and federal courts, and from one state to the next. A random individual would not have standing to object to a stranger's abortion in federal court, and likely not in any state court, under normal circumstances, as they are not injured in any meaningful way by the abortion.

I don't know what the normal rules of standing are in Texas, but it is likely perfectly acceptable for the Legislature to wave its wand to grant standing to whomever it wants regarding any violation of the law it sees for. That seems to be what is happening here.

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The other answers are right to point out that standing is largely determined by state law.

Texas in particular has a strong precedent for this sort of law. For example, Spence v. Fletchler in the Texas supreme court concerned a similar law allowing private citizens to sue "bawdyhouses." The opinion was clear that "such citizen shall not be required to show that he is personally injured by the acts complained of."

This has been reaffirmed many times, and as recently as 2019.

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There is one caveat at federal level; one qui tam law was judged unconstitutional, because it completely removed the state from the equation in a criminal matter:

In 2011, the United States District Court for the Northern District of Ohio held that the False Marking Statute was unconstitutional. Judge Dan Aaron Polster determined that it violated the Take Care Clause of Article II of the Constitution, because it represented "a wholesale delegation of criminal law enforcement power to private entities with no control exercised by the Department of Justice".

[Subsequently] The America Invents Act made significant changes to false marking laws, that affected all pending and future false marking actions:

Only the U.S. government can now sue for the civil penalty authorized in § 292 [...]

The better known False Claims Act procedure mandates that the government actually be (first) notified of the lawsuit and not the actual defendant.

So there are some constitutionally derived limits how far standing can be extended to random parties, at least in some matters.

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Traditional standing requirements in federal courts, are doctrinally derived from Article III of the U.S. Constitution which governs the federal judicial power.

State constitutions or state common law have been invoked to apply substantially identical standing requirements in state court in most kinds of cases, but sometimes with narrow exceptions for advisory opinions in connection with the legislative process. Under Texas precedent, Spence v. Fletchler, and subsequent Texas cases, even a "bounty" type scheme that allows parties without standing to bring certain kinds of lawsuit, is constitutionally permitted under Texas law.

The U.S. Supreme Court in the case of Whole Women's Health v. Jackson, applies a standing test to the federal court challenge of the state law, but the majority opinion is agnostic as to state requirements to show standing or something equivalent that Texas S.B. 8 does not itself require. As some pertinent parts of the Official Syllabus to the opinion explain:

(3) The petitioners name other defendants (Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young), each of whom is an executive licensing official who may or must take enforcement actions against the petitioners if the petitioners violate the terms of Texas’s Health and Safety Code, including S. B. 8. Eight Members of the Court hold that sovereign immunity does not bar a pre-enforcement challenge to S. B. 8 against these defendants. Pp. 11–14.

(4) The sole private defendant, Mr. Dickson, should be dismissed. Given that the petitioners do not contest Mr. Dickson’s sworn declarations stating that he has no intention to file an S. B. 8 suit against them, the petitioners cannot establish “personal injury fairly traceable to [Mr. Dickson’s] allegedly unlawful conduct.” See California, 593 U. S., at ___ (slip op, at 9). P. 14.

(c) The Court holds that the petitioners may bring a pre-enforcement challenge in federal court as one means to test S. B. 8’s compliance with the Federal Constitution. Other pre-enforcement challenges are possible too; one such case is ongoing in state court in which the plaintiffs have raised both federal and state constitutional claims against S. B. 8. Any individual sued under S. B. 8 may raise state and federal constitutional arguments in his or her defense without limitation.

Whatever a state statute may or may not say about a defense, applicable federal constitutional defenses always stand available when properly asserted. See U. S. Const., Art. VI. Many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre-enforcement cases like this one. See, e.g., Snyder v. Phelps, 562 U. S. 443 (First Amendment used as a defense to a state tort suit). Other viable avenues to contest the law’s compliance with the Federal Constitution also may be possible and the Court does not prejudge the possibility.

Justice Sotomayor's dissenting opinion in Whole Women's Health argues that if the State delegates unsupervised authority for private individuals to enforce state law in matters in which they have no standing, that it may do so but that this has consequences. She reasons that when a state does this, that the state has effectively hired these private individuals to be state government officials who are bound by injunctions against any state official even if they are not personally involved in the injunction litigation (Slip. Op. at 7-9):

No party has identified any prior circumstance in which a State has delegated an enforcement function to the populace, disclaimed official enforcement authority, and skewed state-court procedures to chill the exercise of constitutional rights. Because S. B. 8’s architects designed this scheme to evade Young as historically applied, it is especially perverse for the Court to shield it from scrutiny based on its novelty.<3> . . . <4>.

<3>The Court responds by seizing on my mention of S. B. 8’s chilling effect. Ante, at 16. No one contends, however, that pre-enforcement review should be available whenever a state law chills the exercise of a constitutional right. Rather, as this Court explained in Young, pre-enforcement review is necessary “when the penalties for disobedience are . . . so enormous” as to have the same effect “as if the law in terms prohibited the [litigant] from seeking judicial construction of laws which deeply affect its rights.” 209 U. S., at 147. All the more so here, where the State achieves its unconstitutional aim using novel procedural machinations that the Court fails to acknowledge.

<4> The Court also holds that the Texas attorney general is not a proper defendant. For the reasons explained by THE CHIEF JUSTICE, ante, at 2– 3, this conclusion fails even under the Court’s own logic. The Court further observes that “no court may ‘lawfully enjoin the world at large.’” Ante, at 10–11 (quoting Alemite Mfg. Corp. v. Staff, 42 F. 2d 832 (CA2 1930)). But the petitioners do not seek such relief. It is Texas that has taken the unprecedented step of delegating its enforcement authority to the world at large without requiring any pre-existing stake. Under the Court’s precedents, private actors who take up a State’s mantle “exercise . . . a right or privilege having its source in state authority” and may “be described in all fairness as . . . state actor[s].Edmonson v. Leesville Concrete Co., 500 U. S. 614, 620 (1991). This Court has not held that state actors who have actual notice of an injunction may flout its terms, even if it nominally binds other state officials, and it errs by implying as much now. The Court responds by downplaying how exceptional Texas’ scheme is, but it identifies no true analogs in precedent. See ante, at 11 (identifying only “somewhat” analogous statutes). S. B. 8 is no tort or private attorneys general statute: It deputizes anyone to sue without establishing any pre-existing personal stake (i.e., standing) and then skews procedural rules to favor these plaintiffs.

This analysis is a twist on the analysis discussed by @Fizz in an answer looking a the standing issue in some qui tam actions as a question of how much authority a legislative body may delegate (in that case, in a federal litigation context).

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The legislature has the power to grant or limit standing

The common law on standing in each state is different depending on how the doctrine that a party must have sufficient connection to and harm from the law or action challenged to support that party's participation in the case has played out in each state.

Notwithstanding, the legislature has the power to grant or limit standing as it chooses.

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  • 2
    That's not true at the federal level. Per TransUnion v. Ramirez, federal standing requires a concrete injury of a sort traditionally viewed as providing a basis to sue. The legislature can create new injuries related to those (e.g. "you sent someone a credit report about me with false derogatory information" is similar-ish to defamation), but can't just create whatever injuries it wants (e.g. "you kept inaccurate records on me" without the claim that it was sent to third parties doesn't connect to traditional injuries).
    – cpast
    Sep 8 '21 at 0:48
  • @zibadawatimmy TransUnion explicitly says that Congress cannot create federal standing through legislation. Article III standing is an absolute requirement to bring a case in federal court. There are no exceptions to this rule. A chilling effect is a concrete injury under some situations, but Congress cannot grant standing for Article III tribunals by legislation when Article III does not give standing.
    – cpast
    Dec 15 '21 at 5:57
  • @cpast Hmm, yes, Kavanaugh's majority opinion does permit congress to create some new cause for standing, but is emphatic that it must still be tied to some sort of harm the judiciary can discern and redress, and so standing on things with no semblance of harm to the complainant will not suffice. Dec 15 '21 at 17:57

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