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Outrage Defense Stretches Texas Abortion Law Into New Territory

Nov. 9, 2021, 11:02 AM

Welcome to Opening Argument, a column where I’ll dig into interesting arguments in complex litigation, unpack issues dividing appeals courts across the country, and discuss disputes that are ripe for Supreme Court review. First up: The role “tort of outrage” plays in the battle over the Texas abortion law.

Even the staunchest conservative on the Supreme Court was taken aback when the Texas solicitor general said outraged feelings would be suitable grounds to sue doctors and others who violate the state’s ban on abortion after six weeks of pregnancy.

Texas Solicitor General Judd Stone last week likened the hypothetical bystander’s injury to one “suffered in a tort of outrage, where a person witnesses something they essentially find so extreme and outrageous it causes them extreme moral or otherwise psychological harm.”

Justice Clarence Thomas, the state’s most likely ally in these disputes, didn’t seem to buy it.

“Forgive me, but I don’t recall an outrage injury,” he said.

It’s real. You can, in fact, sue someone because you’re outraged by what they’ve done, but law professors say lawsuits brought under the Texas law aren’t comparable to this type of tort claim, which is very hard to prove.

The Texas law, known as SB 8, allows private citizens to sue doctors who perform an abortion—and anyone who aids and abets in that abortion—for a minimum of $10,000 in damages. Opponents say the law opens the door to countless lawsuits brought by bounty hunters who haven’t been injured by the abortion in any way.

To quell those concerns, Stone said the Texas Supreme Court calls for an injury to sue even if the statute doesn’t explicitly require there be one, and an example of an injury here “could be akin to the injury suffered in the tort of outrage.”

Elizabeth Sepper, a professor at the University of Texas at Austin School of Law, said tort of outrage is better known as intentional infliction of emotional distress, and courts are really skeptical of these claims.

The case Paula Jones brought against former President Bill Clinton for an incident that occurred in 1991 when he was the governor of Arkansas shows just how hard it can be. Even though Jones alleged Clinton dropped his pants and solicited oral sex from her in a hotel room, a federal district court in Arkansas dismissed Jones’s claim of intentional infliction of emotional distress, saying her allegations fell short of the rigorous standards for establishing a claim of outrage under Arkansas law.

The court noted she never missed a day of work after the alleged incident occurred.

Adam Zimmerman, a professor who teaches torts at Loyola Law School, said there’s an exacting standard for tort of outrage claims and you have to be able to show the intentional or reckless conduct was aimed at you, that it was so extreme or outrageous that it violates all common decency and morality, and that you were actually injured by it.

“Not just, ‘My feelings have been hurt,’” he said. “We’re talking about PTSD levels of emotional distress.”

Lawsuits brought under Texas’s abortion law, really have nothing to do with tort law, said John Goldberg, a Harvard law professor and expert in tort law and theory.

“Getting an abortion that’s legal under Roe v. Wade is not, in the eyes of the law, mistreating a third person who is upset by the fact that you’re getting an abortion,” he said.

So why did the Texas solicitor general make the comparison?

Goldberg said Stone was trying to use tort of outrage as an analogy to convince the Supreme Court that it can’t block these lawsuits because they are being brought by private individuals, who are suing on their own behalf, not by people who are acting in concert with the state. Stone didn’t respond to requests for comment.

Federal courts have the power to block state officials from pursuing conduct that violates the federal Constitution, but the Texas law was by design set up to avoid that interference from the federal judiciary by handing the enforcement power over to the general public.

Virginia Hammerle, who is board certified in civil trial law by the Texas Board of Legal Specialization, said it’s unclear under Texas state law to what extent the outrageous conduct has to be directed at the individual who raises this type of claim, but the injury still has to be severe.

When it comes to abortion, Hammerle thinks people feel passionately enough that they would easily claim to have nightmares if they know the law’s been violated, but she said it’s unlikely state courts would find that alone to be a sufficient injury.

If Thomas’s response is any indication, convincing even Texas courts could be a stretch.

“Well, but usually, when you think of traditional torts, there is a duty, there’s an injury to the individual,” Thomas said, kicking off the outrage discussion. “It’s a private matter. There is no requirement here that there be an injury to the plaintiff.”

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloombergindustry.com

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