Chick-Fil-A and the “heartbeat” lawsuits

I’d forgotten all about this.

A case that’s before the Texas Supreme Court this fall could have strong implications for the future of the state’s newly adopted abortion ban, the most prohibitive in the nation.

The suit relates to a 2019 law that, like the abortion law, was authored by state Sen. Bryan Hughes, R-Mineola.

Known as the “Save Chick-fil-A” law, it allows anyone to sue when they believe a governmental entity has taken “adverse actions” against a person or company based on its support for a religious organization, as Republican lawmakers believed the city of San Antonio did when excluding the fast-food restaurant from its airport.

Civilian enforcement is also the key to the new state law that effectively bans abortion, Senate Bill 8 — a provision that has so far allowed it to survive a legal challenge based on Roe v. Wade, the 1973 Supreme Court case establishing women’s right to abortions. At issue in both cases: Can a state law grant private citizens standing to sue?

“The standing issue in the case is essentially the same,” said Jason Steed, a Dallas-based appellate lawyer and court watcher who is not involved in the case. “That’s what’s interesting about it is that the court could decide that standing issue and whatever they decide about that issue would have direct implications for SB 8.”


The city council’s decision to ban the restaurant had animated conservatives who saw it as discrimination against the company because its owner had given money to Christian groups that oppose same-sex marriage.

Gov. Greg Abbott, surrounded by Republican lawmakers, each with a Chick-fil-A styrofoam cup in hand, signed Hughes’ bill in July 2019, and celebrated it as a victory for religious freedom.

The suit before the Texas Supreme Court was brought on Sept. 5, 2019, by five Chick-fil-A supporters who said they were harmed because they would have been customers of the restaurant had it opened in the city-owned airport.

Still, they note in the suit that the law does not require them to prove damages and purports to give standing to anyone who alleges a violation. They are seeking a court order to stop the city from excluding the fast-foot chain from this project and potential ones with the city in the future.

It’s unclear whether the company wants into the airport. In September 2020, San Antonio was forced to offer Chick-Fil-A its spot back as part of an agreement with the Federal Aviation Administration’s Office of Civil Rights under the Trump administration. The settlement helped the airport avoid penalties that could have jeopardized millions of dollars in funding from the agency.

But Chick-Fil-A declined, and the city has since given the spot to Whataburger, which is slated to open by next spring.

In August of 2020, the Fourth Court of Appeals in San Antonio sided with the city and reversed a lower court’s decision, ruling that the city had sovereign immunity, a legal principle that protects governments and their agencies from lawsuits.

See here, here, and here for some background. Ken Paxton filed a lawsuit in July of 2019, before the five busybodies filed theirs. The easy way out for SCOTx is to uphold the Fourth Court’s ruling, which would allow them to not address the question of standing, which as noted is at the center of SB8. The city of San Antonio argued that the plaintiffs did not have standing, and as of today there’s no adjudication on that matter. Sooner or later, one way or another, we’ll get some kind of answer to that.

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2 Responses to Chick-Fil-A and the “heartbeat” lawsuits

  1. Kibitzer Curiae says:

    A few comments on jurisdictional issues in the Chick-fil-Airport concession controversy.

    (1) Cities do not have sovereign immunity, but governmental immunity, which is derivative of the State’s sovereign immunity.

    (2) The Court of Appeals did not resolve the appeal on standing grounds, but based on lack of retroactivity of the statute passed to waive the city’s immunity. The relevant acts/conduct occurred prior to the immunity waiver’s effectiveness date and was therefore not actionable as a violation. See the San Antonio COA opinion for detailed analysis here:,44

    (3) The lack-of-standing issues are being raised defensively by the City in the Supreme Court (the petition was brought by the plaintiffs after the dismissal of their suit for lack of jurisdiction), and the argument that statutory standing (in the absence of injury) precludes jurisdiction is only one basis for affirming the court of appeals’ judgment and its dismissal based on want of jurisdiction. (The COA didn’t reach the lack-of-standing issue, which had been raised by Rule 91a motion, rather than being included in the City’s plea to the jurisdiction asserting immunity).

    So, this is not a good test case for the viability of citizen-enforcer lawsuits, at least not in the best procedural presentation because there are multiple other problems, including the problem of judicial interference with contracting by nonparties.


    That said, the SCOTX may be interested in modifying existing caselaw where they previously borrowed from federal standing doctrine under Article III. They could do so since they have the last word on state constitutional and state-law statutory construction. Texas state district courts are, after all, not Article III courts, but courts of general jurisdiction, and the SCOTX gets to decide what the Texas constitution requires or prohibits.

    As a general rule, states can fashion their own standing rules for state-court actions, and since the Texas Legislature has authorized private-citizen suits, the SCOTX may very well go along with that legislative will and intent, given that they are politically on the same side as the enacting legislature.

    The key issue here that has implications for SB8 is whether suit may be brought and maintained when the plaintiff relies *only* on statutory standing and cannot show a concrete injury to herself/himself/itself, or some impending harm redressable by a court through a judicial remedy. The SCOTUS said ‘No’ in the Transunion credit report data misuse case, but that ruling pertained only to actions brought in federal courts, which are courts of limited jurisdiction.

    The Texas Supreme Court does not have to follow federal precedents on this, and may very well hold that no particularized injury is required to pursue claims on purely statutory causes of action authorized by the Texas legislature that to not expressly require a showing of injury as an element of a claim for relief (whether for statutory damages or injunctive relief, or both) under such a statute.

    CASE CITE: City of San Antonio v. Von Dohlen, No. 04-20-00071-CV, 612 S.W.3d 503 (Tex.App.-San Antonio Aug. 19, 2020, pet. granted under Tex. Cause No. 20-0725)(“Because the City has governmental immunity from appellees’ claims, we reverse the trial court’s [denial of the City’s] plea to the jurisdiction and render judgment dismissing this case for lack of jurisdiction.”)


    TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (Plaintiff does not automatically satisfy injury-in-fact requirement for standing and case or controversy under Article III when a statute grants a person a statutory right to sue on a violation and seek a statutory penalty. Only a plaintiff concretely harmed by a defendant’s violation of the Fair Credit Reporting Act has Article III standing to seek damages against that private defendant in federal court.)

  2. Kibitzer Curiae says:


    Well, the responses in USA v. Texas and WWH v. Jackson have been filed, along with three additional petitions for pre-judgment cert by the defendants in Whole Women’s Health v. Jackson, asking for Roe v. Wade et progeny to be flushed for good.

    New SCOTUS NOs: 21-463, 21-582, 21-583, and 21-587

    Title: Penny Clarkston, Petitioner
    Whole Woman’s Health, et al.


    Whether the Court should overrule Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).


    Abortion is one of the most controversial issues in the United States and is likely so because of this Court’s intervention. The Court’s attempt to answer the question for all time and remove the issue from public debate, see Casey, 505 U.S. at 867, has had the opposite effect, and least half of the American public is still as intensely opposed to abortion as it was in 1973.27 If the Court is concerned about efforts by states to craft abortion legislation that may actually take effect, it should eliminate the root of the problem: its unworkable abortion precedent.

    Overruling Roe and Casey would allow the Court to relinquish its role as nationwide abortion regulator and return the job to States and elected officials where it belongs.



    1. Should the Court overrule Roe v. Wade, 410 U.S.
    113 (1973), and Planned Parenthood of Southeastern Pa.
    v. Casey, 505 U.S. 833 (1992)?

    2. Should the Court overrule Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), which refused to enforce an explicit severability requirement in a
    state abortion statute?



    Whether the Court should overrule Roe v. Wade,
    410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

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