Texas’s SB 8 law has a unique structure of private enforcement. When it was passed, it was designed to circumvent the then-existing-constitutional protections for abortion healthcare. SB 8 specifically barred public enforcement and instead allowed private actors to stop abortions or collect a bounty for abortions already performed. The bounty regime allows “any person, other than an officer or employee of a state or local governmental entity in this state,” to sue those who perform, induce, aid, or abet an abortion, or intend to do any of those things. (The statute is clear that it does not authorize suing women who obtain abortions.) If victorious, the plaintiff—who could be any random person—could obtain injunctive relief and statutory damages of not less than $10,000, as well as attorney’s fees and costs.

As many warned, the regime could go beyond abortion jurisprudence. Indeed, it has already been utilized in California against illegal firearms:

The bill, SB 1327, allows Californians to sue those making, selling, transporting or distributing illegal assault weapons or ghost guns for at least $10,000 in damages. Gun dealers who illegally sell firearms to those under the age of 21 could also be liable for the same damages.

At this point, there’ve been thorough examinations of many of the legal concerns with SB 8, including whether there is standing to challenge the law, whether the law is tautological, and whether the use of private enforcers of the law is appropriate. But one feature has received relatively less attention: the purportedly civil nature of the remedy of statutory damages for successful plaintiffs.

I contend that the statutory damages provision in fact imposes a criminal fine and that this has important implications for how cases under SB 8 (and any other similar regime) must be adjudicated.

In Hudson v. United States[1], the Supreme Court considered whether monetary sanctions and occupational debarments against bank officers counted as criminal sanctions that would, as a matter of Double Jeopardy, bar further criminal actions. In deciding the case, the Court set forth a test to determine whether and when purportedly “civil” monetary sanctions could be a criminal sanction for purposes of constitutional protections. The Court observed that it is ultimately a question of statutory construction. The court is to initially ask what label the legislature used. But that is not dispositive. “Even in those cases where the legislature ‘has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect,’ as to ‘transfor[m] what was clearly intended as a civil remedy into a criminal penalty[.]’” To that point, the Court set forth the following seven factors:

(1) [w]hether the sanction involves an affirmative disability or restraint;

(2) whether it has historically been regarded as a punishment;

(3) whether it comes into play only on a finding of scienter;

(4) whether its operation will promote the traditional aims of punishment-retribution and deterrence;

(5) whether the behavior to which it applies is already a crime;

(6) whether an alternative purpose to which it may rationally be connected is assignable for it; and

(7) whether it appears excessive in relation to the alternative purpose assigned.

Here I think there is a strong argument that the statutory minimum fine of $10,000 is a criminal sanction—not a civil one. First, consider that in Section 2 of the Act, the statute notes that the State of Texas never repealed the laws prohibiting or criminalizing abortion—so the statute itself recognizes that this is operating in the shadow of criminal prohibitions that the legislature ruefully could not impose. Thus, the legislature was intending to impose a criminal sanction circuitously. Another important overarching point is that the $10,000 floor on damages has no genuine compensatory function. Any random person who can prove the case can cash in. Notably, the $10,000 floor is in addition to the attorneys’ fees and costs the plaintiff might incur, further bolstering that it’s superfluous as a compensatory matter. The legislative intent is therefore clear. With that in mind, we consider the factors:

(1) Is this an affirmative disability or restraint? Of course, it is not incarceration. But the fine is so excessive that it operates—by design—to make it prohibitive and infeasible for doctors and others to engage in or promote abortion. In that sense, it is a restraint. (Even if you disagree, if failure to satisfy this factor were dispositive, then fines—even massive ones—could never be criminal—and that can’t be right.)

(2) Monetary sanctions themselves may not have been considered punishment per se, but noncompensatory fines have been traditionally considered punishment (I mention punitive damages below).

(3) The statute explicitly requires knowing conduct by the physician and it requires knowing aiding or abetting by other individuals. (The statute goes on to say that persons aiding and abetting may be liable even if they did know that the abortion was in violation of the statute, but that addresses ignorance of the law—not the scienter of the action.)

(4) The $10,000 floor is clearly constructed to deter actors from engaging or promoting abortions. Its function is not compensatory—it is meant to create a sufficient monetary disincentive from engaging in the sanctionable conduct (engaging or promoting abortions). We could surmise as well that the excessive punishment has a retributive component to it, but on my reading there isn’t statutory language to confirm that.

(5) When passed, the behavior that SB 8 sanctioned was not already a crime—because of the then-existing protections of Casey and Roe. But the statute makes clear that, according to the legislature, the State of Texas understood the conduct to be criminally prohibited. Indeed, Jonathan Mitchell—the architect of SB 8—espouses the view that unconstitutional laws aren’t erased by the Supreme Court—so that might just mean the sanctioned conduct is “criminal,” but cannot be enforced. Moreover, even if we were to determine the conduct was not ultimately criminal should not detract from SB 8’s sanction being considered criminal, given that SB 8 is designed precisely to circumvent the constitutional protections that made abortions legal and noncriminal.

(6 & 7) It is unclear what the alternative purpose for the $10,000 might be. It isn’t compensatory to the bounty hunters—they are already having their attorneys’ fees and costs covered and it is unlikely that discovering the conduct of engaging in or promoting abortions costs them $10,000. That makes pellucid that the $10,000 is excessive when compared to that purported alternative purpose of compensation.

All told, there is a strong argument that both the legislative intent and the 7-factor test point to this being a criminal sanction.

One preliminary objection is that of course SB 8 is civil—it doesn’t involve the government, only private actors. But that seems too quick.

Suppose a statute defined some conduct as wrongful and authorized private actors to incarcerate offenders in, say, private prisons. The sanction of incarceration is clearly a criminal one. Does the fact that the statute asks private actors to carry out the sanction negate the “criminal” label? I think not. Perhaps one response is that the sanction is not criminal, but that such a statute cannot stand—because, roughly, the legislature cannot delegate to private parties essential “criminal” functions. That formal answer is welcome—because it would still mean SB 8’s $10,000 sanction is invalid. There’s more to say here, and I intend to say it, but in the interest of brevity, my principal point is that the SB8 sanction looks criminal, talks criminal, and walks criminal.

So, what comes of all this? A lot. Setting aside the difficult question of whether private parties can legally pursue criminal sanctions, and assuming that private parties are properly deputized to pursue the criminal sanction of SB 8, the fact that it is a criminal sanction means that defendants should have criminal procedure protections. Principally, cases against them must be proved beyond a reasonable doubt. Further, they should be entitled to plead the Fifth, without adverse inference. (They should also be entitled to indigent counsel, but if there is $10,000 to sue for, perhaps that won’t come up as much.)

Then, there’s the question of jury trial. Peter Salib and I argued here, here, and here that jury nullification may be a potent way of negating abortion prosecutions. But, as Professor Dorf observed, that avenue may be blocked in civil suits, because of the possibility of summary judgment. However, Article I, Section 10 of the Texas Constitution gives criminal defendants the right to jury trial. Thus, if SB 8 imposes a criminal sanction, then the defendant may have an absolute right to a jury trial in Texas.

The U.S. Constitution is murkier. In Blanton v. City of No. Las Vegas, 489 U.S. 538 (1989),and United States v. Nachtigal, 507 U.S. 1 (1993), the Court rejected claims that crimes with penalties of $1,000 and $5,000, respectively, were “serious offenses” to which the jury trial would attach[2]. But both cases recognized that there might be a “rare situation where a legislature packs an offense it deems ‘serious’ with onerous penalties that nonetheless ‘do not puncture the 6–month incarceration line.’” Here, there is an argument that the legislature intended to do exactly that, precisely because it was disallowed from imposing incarceration at the time of the Act’s passage. If that argument works, SB 8 defendants may have a federal constitutional right to a jury trial as well[3].

Lastly, this argument about purportedly civil sanctions actually being criminal ones—and thus requiring further criminal protections—has potentially broader reach. It may also mean that defendants facing punitive damages and other types of noncompensatory government civil sanction are entitled to the suite of protections of our constitutional criminal procedure.

Guha Krishnamurthi is an Associate Professor at the University of Oklahoma College of Law.

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Thanks to Michael Dorf, Charanya Krishnaswami, Alex Platt, and Peter Salib for insightful comments.

[1] 522 U.S. 93 (1997).

[2] Nachtigal was in 1993 and the inflation calculator says that $5,000 in 1993 is equivalent to over $10,200 today.

[3] Moreover, setting aside summary judgment, Texas does not require unanimous verdicts for civil proceedings, but criminal proceedings do require unanimous verdicts (per Texas statute and the Supreme Court’s recent holding in Ramos). That too makes a substantial difference, especially in terms of nullification.