What employment law can tell us about the radical concept of standing created by Texas’s new abortion law

One of the more esoteric (arguably boring) concepts in law is the idea of “standing”—that is, what kinds of disputes the Constitution allows courts to consider, and who can bring them.  To put it another way, “standing” is about whether someone is allowed to sue someone else in the first place.  However, standing to sue is often directly tied to whether someone’s rights are protected by law.

 The new abortion law that took effect in Texas on September 1, 2021, is controversial for many reasons.  This article focuses on just one of those reasons: the law is enforced through a “bounty” provision that may allow anyone, anywhere, to sue someone for knowingly aiding or abetting—or even just intending to aid or abet—an abortion more than six weeks into a pregnancy.  The plaintiff in that situation can win a bounty of $10,000 plus costs and attorneys’ fees.  This article places that provision in context with the rules of standing for qui tam whistleblowers and other employment claims to point out just how much of a sea change it represents.  

In the 1992 Lujan v. Defenders of Wildlife decision, the U.S. Supreme Court explained that in order for someone to have standing to sue, they must (1) have suffered a concrete and particularized “injury in fact” to some sort of legally-protected interest; (2) that injury must be “fairly traceable” to the actions of the party being sued; and (3) it must be likely that the court could do something to redress that injury.     

Your average employment dispute is often about things like discrimination or an employer not paying its employees properly.  There, if there are any issues tied to standing, mostly they would be related to the first prong—an injury in fact to a legally-protected interest.  For instance, a court may reject a discrimination claim if the plaintiff did not suffer an adverse employment action.  Or, if the employer’s conduct is not for an illegal reason, there may not be a legally-protected interest at play.       

That brings us back to the new Texas law’s “bounty.”  It seems obvious that someone suing under that law is not in the same position as someone who directly suffered discrimination or wage theft.  In fact, it is hard to say how a plaintiff under the new abortion law has been directly harmed at all.  If the federal government’s lawsuit to invalidate that law succeeds, it may well be because that bounty provision is an unconstitutional end-run around standing.  But the Supreme Court apparently side-stepped the issue because of the bounty language, refusing to stay the law’s enforcement because it raises “complex and novel antecedent procedural questions.”  

The False Claims Act represents one area in the employment context where “bounties” are permitted.  However, the new abortion law goes far beyond the FCA.       

The FCA allows the federal government to sue if it is defrauded—for instance, by falsifying records to receive federal funds they’re not actually eligible to receive.  Fraudsters under that law may have to pay triple the government’s actual damages plus a civil penalty for each false claim.  As part of that law, even if the government does not sue, a private citizen (the “relator,” often an employee of the fraudster) with knowledge of the fraud can pursue their own “qui tam” lawsuit against the fraudster to recover a percentage-based bounty “in the name of the government.”  

Notably, it’s the government that was harmed by the fraud, not the relator.  So how can the relator have standing under the Constitution?  Qui tam lawsuits are actually centuries older than the Constitution itself, dating back to England in the 13th century.  Partly for that reason, the U.S. Supreme Court found a way to reconcile qui tam claims with standing.  In Vermont Agency of Natural Resources v. Stevens, it held that the FCA partially assigned the government’s damages to relators, who may step into the government’s shoes.

But there are major difference between the FCA and the Texas abortion law that show just how much farther the latter goes.  The Texas law explicitly states that private individuals are the only ones who can sue enforce the law, and no state government employee can be involved.  This is very different from the FCA, and it is hard to see how there can be similar “assignee” standing as a result.  Even if there were, it’s relatively easy to calculate how the federal government is monetarily harmed by being defrauded, but much harder to see how Texas is harmed by an abortion.  In addition, the new abortion law’s $10,000 bounty appears to be more or less arbitrary, whereas with the FCA damages are fundamentally based on how much money the fraudster cost the government, plus extra amounts to penalize their actions.  Finally, the FCA prohibits someone from being a relator if their knowledge of the fraud comes from public filings.  Thus, the FCA discourages “dog-piling” on a fraudster with identical accusations.  But the Texas abortion law specifically allows multiple suits related to the same abortion.  

The new abortion law goes far beyond the FCA or other employment laws in allowing people who would not traditionally have standing to sue others.  If found to be constitutional it would revolutionize the very idea of standing, including in employment law.  

   If you believe your rights as an employee have been violated or that your employer is defrauding the government, you should talk to an employment attorney like those at Rob Wiley, P.C. 


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