Got your attention? Great!
As I’m sure you’ve heard, the Supreme Court didn’t stop a Texas law that bans abortions performed by Texas physicians after six weeks from going into effect.
The Texas law is clearly unconstitutional. Whether or not you think the right to abortion should be a constitutional right, there is no question under Supreme Court jurisprudence that it is. And the Supreme Court has never allowed a six-week abortion ban to go into effect before, even temporarily.
So what’s different about this Texas ban? Enforcement. Usually statutes that prohibit abortion are enforced by the state government. That means that procedurally, pre-enforcement challenges are straightforward: you sue the government, which would enforce the law, and your case works its way through the court system. If the courts think you have a reasonable chance of winning, they can issue an injunction, preventing the law from going into effect until there has been a full hearing.
This Texas law functions differently: the Texas government does not enforce it. Rather, the law is enforced through “private civil actions.” What that means is that, instead of the government fining or jailing violators of the law, individuals can sue people who perform or aid and abet the performance of an abortion in violation of the Texas law.
This private right of action enforcement is intended to make pre-enforcement challenges nearly impossible. Why? Because there’s no designated enforcer to bring a case against. (That procedural impediment may be why the Supreme Court declined to prevent the law from going into effect.)
If you’re a U.S. person and you’re interested in constitutional rights, this legislation should terrify you, whether or not you support abortion rights. Why? Because if this works, it provides a template for state governments to circumvent the Constitution. Does Illinois want to ban all guns? Give individuals a private right of action against anybody who owns or sells a gun. Does New York want to prevent citizens from criticizing legislators? They can copy and paste the Texas law, replacing a couple words here and there. Does Missouri regret its rescinding its Extermination Order? Give citizens a private right of action against anybody who organizes or attends a meeting of the Church of Jesus Christ of Latter-day Saints.
And note that this isn’t a slippery slope argument: I’m not saying that this abortion law will inevitably result in these unconstitutional laws. I’m saying it provides a template that legislators can (and will) use to enact policies they want and will get them enacted at least temporarily.
These unconstitutional laws won’t stick, of course. Eventually someone will sue and the abortion law will be challenged and will, presumably, be struck down. But in the meantime, abortion providers in Texas face the risk of lawsuits. And even if the law gets overturned and they don’t have to pay the plaintiff, they’ve still spent the time and money and faced the emotional costs of defending suits. Similarly, the blanket ban on guns, criticism, or church meetings would, eventually, be overturned. But in the meantime, anybody who had a gun or criticized the legislature or attended church could face serious and debilitating costs. (And those potential serious and debilitating costs would chill peoples’ exercise of their constitutionally-protected rights.)
This post is, I repeat, not about abortion. It’s not about the normative question of whether abortion should be a constitutional right. Rather, it’s about the risk to all of our rights that this Texas legislation, and the Supreme Court’s failure to prevent it from going into effect before it can be fully litigated, poses. And that’s something that all of us in the United States need to worry about, irrespective of our political preferences.
By Common Consent, a Mormon Blog 
Sam,
This is breathtakingly bad.
Thank you for explaining just how bad.
I’m really perplexed by this. The law creates civil liability and allows any person other than some type of government employee to bring the suit. I haven’t read it carefully yet, but it seems that a suit under this law wouldn’t meet standing requirements: the person bringing the suit is not harmed. Unless this is a variation on a private attorney general, in which the suit is brought by the private person in the public’s interest, alleging harm to the public. But that is surprising too: I’ve encountered several conservative arguments against private attorney general provisions on the grounds that handing prosecutorial authority over to the public is a dilution of the unitary executive authority (although those constitutional arguments may just be cover for disagreement with the fundamental laws that allow for private enforcement of civil right statutes and environmental laws).
From what I have read in the news those who sue someone who assisted or participated in an abortion might be awarded up to $10,000. I’m not a legal expert, but, this law reminds me of the Nazi’s or the Communist Russians or Chinese, where citizens would be rewarded for turning over those opposing the regime or harbored Jews or other undesirables. This truly is CHILLING! Certainly a new take on “Am I my brothers keeper?” What would happen to “love thy neighbor?” You’d afraid of neighbors, friends, coworkers and family. Not the Lord’s approach of “ He or she who is without sin let them cast the first stone.” First Abortion, then what comes next? Makes me shiver!
Rachel, that’s a really good question. I’ll confess that my knowledge of standing rules is limited entirely to federal courts (and mostly, though not solely, to tax disputes). Does anybody know the standing rules in Texas state court litigation?
Nice, handy, and terrifying explanation, Sam.
To take someone to court don’t I need to prove that they have injured me in some way? If someone performs an abortion, how did they injure me?
jader3rd, that’s a really good question, and it’s the standing question Rachel brought up. The Constitution requires that type of actual injury to access federal courts. But I don’t know how that works in Texas courts (where these kinds of suits would be adjudicated).
“Pro abortionists” is all we need to read to know we can dismiss your comment, mark l. That, and that this post isn’t about abortion, but about jurisprudence.
It only took 8 comments!
To Brian’s point, this post is not about abortion. And I will delete comments arguing about abortion (like the one Brian responded to). There are plenty of places in the Internet to argue about it. This comment section is not one. (Why not, you ask? Because of people start talking substantively about abortion, that will subsumed the topic of the post which is, as I said twice, not a normative evaluation of the constitutional status of abortion.)
Do you think if these kind of laws are permitted to stand that it will hasten the political self sorting and division of the nation.
I believe California uses the private right of action in its laws on access for those with disabilities. That way the state saves enforcement money. But it has also created a new mini legal industry. Lawyers find a disabled person to visit a store, and identify some kind of barrier to access, then starts a class action lawsuit against the company that owns it. That visit to the store solved the standing problem. Then they settle the lawsuit with respect to all of its other stores in that same county. Then they move to the next county and start again. Public companies with many locations get hit more than once.
Why are you so certain “that these unconstitutional laws won’t stick”? With three new Supreme Court justices nominated by Trump, i have to wonder if these unconstitutional laws will be rendered constitutional.
Also I’m wondering if my earlier comment went through and is stuck in the spam filter….
Sam, I’m not sure that there’s anything that can be made of the Supreme Court’s action so far. The whole world has been acting like the Court MUST act before September 1, but I’m certain the Court doesn’t see it that way. The Court is just as capable of enjoining enforcement of an enacted law as it is a yet-to-be enacted law. All of the hemming and hawing about the Court’s inaction seems premature. These kinds of emergency orders typically take at least a few days, and in this case, it should surprise nobody that the Court may need some time to decide on exactly who it will enjoin.
As a side issue, it’s amusing to me to see how people use the word “unconstitutional”. If it is currently unconstitutional to prohibit abortion, that is only so because the Court’s precedents make it so. There’s certainly nothing actually written in the Constitution that even hints at the idea. So if the Court overturns its own precedent, a law banning abortion wouldn’t be unconstitutional, so it wouldn’t be allowing unconstitutional abortion laws to go into effect at all.
Rockwell, I don’t see a comment of yours in the spam filter. If I find it I’ll release it. As for not sticking: the 6 week ban is extreme. The Court will hear a 15-week ban case. That one I could see pushing the Roe envelope; jumping straight to six weeks strikes me as unlikely. (I’m not, however, a professional Court-watcher, so I could obviously be wrong.)
Dsc, like I said, this isn’t a post about abortion, and you’re pushing really close to my comment deletion. I’m not going to, though. I will say that, whatever a person’s political ideology says, under our system the Supreme Court is the final arbiter of the Constitution. To the extent the Supreme Court says that the Constitution protects a particular right, laws prohibition that are unconstitutional. The right to abortion is not only well-established in Supreme Court jurisprudence, it derives from the penumbral right to privacy in the 14th Amendment. You may disagree with that as a normative matter but I said this post was descriptive and, as a descriptive matter, to the extent the Court recognizes the constitutional right, a law prohibiting it is described as unconstitutional.
And you’re right that the Court had no obligation to issue a TRO or otherwise enjoin the law. But like I said in the post, that decision means the unconstitutional law goes into effect. It threatens people who wish to exercise that right with litigation, litigation that exacts both economic and non-economic costs. If I were a legislator who wanted to pass an unconstitutional law and I saw that the Supreme Court was going to let it slide at least temporarily, I would use precisely this model.
Sam,
If the law is effective for two days, you would still want to lean on that strategy? I get the concern, and I agree that the private AG method of circumventing the Constitution is as dangerous as it is clever, but I don’t think state legislatures will be persuaded to pursue this method based on a law going into effect for a few days, especially if the Supreme Court sets a precedent for how to respond to these kinds of schemes.
I’ll refrain from responding in depth to the defense of Roe, except to note that I’m not persuaded, and I think at least 5 members of the Court would agree. But you may have missed my point. Of course, as a descriptive matter, a law is unconstitutional as long as the Court says so. My only point is that if the Court ultimately overturns Roe and Casey in Dobbs, people will undoubtedly complain about the “unconstitutional” decision, and all they will be able to point to is shadows.
Sam:
I think you are making a pretty significant error in your interpretation here. The U. S. Supreme Court is always reluctant to rule on issues like this when they are presented — the Court historically is very conservative (note the lower-case ‘c’), meaning they would like to see how lower courts (plural) have ruled on an issue before they decide on it. You note that this is a novel approach, which is exactly the sort of situation where the Supreme Court will historically not intervene. While I have rather substantial discomfort with the statutory scheme I don’t think it will multiply because I reckon the Supreme Court will ultimately deal with these issues.
Also, note that both Breyer and Kagan (in their dissent) note that “Defendants argue that existing doctrines preclude judicial intervention, and they may be correct.” So to resolve the issue would require that the Supreme Court create a novel doctrine for a novel situation in a moment that would then become precedent — I can clearly see why the court would be very reluctant to take that approach. Even the Breyer/Sotomayor/Kagan dissent could articulate no clear principle of law to address this issue.
Ok. My comment that was lost somewhere in the ether had a link to the latest NPR Politics podcast, in which Nina Totenberg says the Texas law allows anyone to sue the abortion providers and staff. The plaintiff does not have to have any interest in the matter at all, and there is the financial incentive of $10000 or more plus legal fees. They don’t even have to be in Texas. You can find similar explanations in most of the major news outlets.
So the pundits / journalists do not seem to think standing will be an issue. I’m not a lawyer, so I can’t address that question from my own expertise.
The purpose of this law seems to be to drive the clinics out of business. Reports are that most if not all have already stopped providing abortions. How long can they survive without the protection from the court? Not long, I think. A few days could do a lot of damage. I would say this is exactly what the Texas legislature hoped for.
While a novel approach, this is the kind of maneuver that is frequently used to get a case in front of the court to move the needle on an issue. The court has never let ban like this (six weeks) go into effect for any length of time. By artificially creating a lack of standing, the legislature has given the new and much more Conservative Supreme Court cover to let this law stand. Now that it is in effect, there is huge pressure in the clinics to close. It’s a bit of an open question who can be sued under the law, with some news analysts saying that even driving someone to and from the clinics could get you sued for the 10k, not to mention all the people that work at the clinic who could be *personally* held responsible. The goal here is clearly to put the abortion clinics out of business for providing a currently constitutionally protected service, and it just might work. No one knows how long it will be before the court takes action; it may never happen. To me, I think this is one of the ways that SCOTUS moves the needle on long standing precedent.
The gun store analogy is appropriate. The 2nd amendment advocates could see the same approach used to close gun stores. But I don’t know how bothered they would be about that. Methinks it is much easier to buy a gun out of state to avoid an onerous law then it is to travel 200+ miles for an abortion. I don’t know if there are many people in poverty desperately trying to get a gun when they can’t afford to drive out of state or order it online.
Jonathan, the dissent you’re referring to was written by Chief Justice Roberts. And the dissent very clearly says that the three of them would have blocked the law until the courts could fully hear it; in fact, they’re concerned about the issue I raised in the OP—that this statutory scheme circumvents the usual procedures.
Dsc, I’ll admit to being concerned even where constitutional rights are violated even for a couple days. It’s probably not the end of the world if Mormons can’t go to meetings one Sunday. But when they can’t go because the government targets Mormon meetings, that’s bad. Similarly, I guess who cares if you have to quarter troops in your home for half a week? (I was going to use that as one of my examples, but totally forgot.) I do, honestly. The idea that short-term infringement on rights isn’t actually infringement strikes me as a nefarious concept.
It’s clearly possible that the Supreme Court will overrule or (more likely imo) scale back the protections of Roe. But if it goes that direction, it will do it after extensive litigation through three levels of courts, an extensive record, and arguments by lots of stakeholders. Allowing a state to violate currently-existing, un-overruled constitutional rights is an objectively bad thing.
Rockwell, thanks for that–I’m sorry your comment got lost somewhere in the ether!
Can we just declare the entire Republican Party a danger to the country, to democracy, and to sanity?
While I agree that under stare decisis the Texas law is likely unconstitutional, that doesn’t mean the court can’t overturn Roe v. Wade just as they did Plessy v. Ferguson. And even if SCOTUS does overturn Roe v. Wade, Congress can always make abortion legal nationwide by statute. We have learned this past year that nothing, not even our most sacred civil principles as embodied in the first amendment, is permanent. An ocean of madness is lapping at our foundations on individual rights. In my opinion, we as a people have a lot more to worry about than whether women can continue to kill their children in lieu of using birth control.
I see that Biden is proposing a “whole of government” response to the law. I’ve been trying to figure out what that might look like. One possibility would seem to be for the federal government to sue any individual who files such a suit in Texas on the grounds that such suits, being unconstitutional, violate the defendant’s civil rights. If they attach a big enough dollar amount to those suits, they might deter any from being filed.
Derb: We can. Unfortunately, that doesn’t actually prevent or remedy the danger.
“…women can continue to kill their children in lieu of using birth control”
I suspect the conversation goes something like:
“Hey rapist/incest abuser, could we just hold off a month or two on this uninvited sexual encounter so I can go to the doc and get on the pill first? Thanks, you’re such a sweetie for being so patient.”
Sam
I suspect my post will get pulled, but a bit of a backstory to understand my riposte.
My daughter was raped in Texas, and became pregnant. I can’t recall the timeline, (likely more than 6 weeks) but the only reasonable outcome was an abortion.
She was 15.
It is astounding that the folks in Austin will use such subterfuge and legal stickhandling to impose their vision on an innocent kid.
Like you, I suspect that this will be overturned, but think of the misery it will cause in the interim.
wowbagger, I’m so sorry to hear that.
Developing lastlemming’s idea: Could plaintiffs who sue under the Texas law face 1983 private-actor liability? Federal courts of appeals have held that private actors can be liable when they, inter alia, perform public functions delegated to them by the state.
It’s a stretch, but maybe the abortion law effectively delegates enforcement of the ban en masse to private citizens, such that a private citizen who uses the law to deprive a woman of her right (which is clearly established under Roe) would be liable. Gosh I’d love to read those briefs! Or write them!
Civil rights liability seems more and more like it fits: If the state is going to deputize citizens to enforce clearly unconstitutional laws, *someone* has to be liable for the resulting deprivations, right? Otherwise, the Texas approach blows a giant whole, not just in constitutional rights in the abstract (as Sam has well pointed out), but in the civil liability that is the mainstay of their enforcement.
Thanks, Sam, for bringing just the right amount of wonky to this blog.
Sam,
I never said that the abridgement of constitutional rights isn’t concerning. I said that allowing a law to go into effect for a few days only to be enjoined shortly after doesn’t create a pattern that states are going to want to emulate. Churches saw their rights infringed for months last summer. That’s concerning, but I don’t expect the fact that it took some time for the issues to get litigated provides much incentive for states to try the same restrictions on worship in hopes that they can get away with it for a couple of weeks. (Of course, I could be wrong on that; it seems the President was counting on a delay for another illegal action.)
With respect to remedy, who should the Court have enjoined? That isn’t clear from any of the dissents. The only clear suggestion was from Roberts, but that wouldn’t solve the problem because there was no class certification. It seems the Court would need to expand Ex Parte Young to include judicial actors. But that would be a significant expansion without in-depth briefing, which would appear to run contrary to Kagan’s criticism of the Court’s use of the shadow docket.
1) The state of Texas does not have the power to veto a women’s decision to get an abortion and they cannot delegate a power they do not have to another party.
2) SCOTUS has already ruled that states cannot bypass the 14th amendment by delegating power to third parties.
3) The Republicans who wrote the bill clearly could not understand either of the prior two points.
Without SCOTUS, the law has to go through the court system and it will eventually be found unconstitutional. Meanwhile, the abortion clinics will close and will have a hard time re-opening when the time comes. Abortion clinics in Texas have constant “surveillance” with protesters intimidating women going into the clinics, and death threats/slander to those that run the clinics, not to mention GOP finding round about ways of slashing funding.
Jessica, I suspect Republicans who wrote the law knew those two things very well and are pretty sanguine behind closed doors about whether it survives review. In fact, I think the main point is to get this in front of the Supreme Court to take a shot at repealing Roe v. Wade.
I agree with Sam. Texas’ SB8 is illegal, and the Supreme Court’s response invites more lawlessness. Some see poetic justice: using one illegal act to stop another. They celebrate, but they shouldn’t. If Roe v Wade was wrongly decided, the Supreme Court should overturn it through legal means.
Voters have long failed to restrain the government’s illegal acts in everything from war and torture to “Dear Colleague” letters designed to bypass administrative law. To stop the flood of lawlessness, they will have to be willing to make short-term political sacrifices. I hope they realize this soon.
To expand on Not a Cougar’s comment, the TX republicans have not usually been so stridently in favor of legislation to severely restrict abortion. One other issue about this law is that it costs the state government little to nothing, since they are not parties to the lawsuits and do not have to fight much of anything in court.
There may be some other reasons for this as well. I wonder if one of the lobby groups wants a way to get all sorts of lawsuits against the abortion clinics. They may just want discovery against them to add to the potential parties to the suits and also, perhaps see if they are doing other illegal activities.
I wonder also if the conservative movement in general is hoping to get a lawsuit against this type of law to the Supreme Court and then also link things like 3rd party suits on environmental rules by the Sierra club and others in the ruling against this related type of lawfare.
At Balkinization, Priscilla Smith gives some even more pointed examples of how much fun we could have with private rights of action:
–A statute that makes it illegal to advocate anti-choice views on abortion, enforceable by any person. Smith suggests statutory damages of, say, $100,000. Then you, dear reader, a private citizen, could sue organizations like Americans United for Life. You could even sue politicians who advocate overturning Roe v. Wade.
–A statute that makes it illegal for some group of people to become lawyers. It could also be illegal to help someone in that group become a lawyer. Choose any group—Mormons, Arabs, men, women, whatever. Enforcement of the law is assigned to a different group.
Would the Supreme Court fail to enjoin enforcement of laws like these because, geez, they just can’t figure out whom to enjoin? lol
Kerry. Being your “brothers keeper” has a hearty following already in politics, corporations,religious groups and standards offices. A lot of grapevine fodder of pure gossip appears to be a human condition, used in inhumanitarian ways. In my experience a verbal accuser does not have to provide proof. This leaves the defendant to provide evidence to the contrary.
Thank you for the explanation. It truly is the legalization and promotion of the mob.
JWL: It is indeed discouraging to try to discuss any topic nowadays. We are all so divided. For example: it is extremely difficult for me to understand the merits of your comment because you repeatedly used the term “the left” which I’m fairly certain is not, for you, a term of endearment. Because of your apparent need to expose what you see as double standards, because you seem so interested in showing the glaring shortcomings of “the left” I can’t figure out whether your argument has merit or whether it is simply another example of “what about-ism. Do better.
JWL, you say that you share Sam’s concern about private rights of action, but the rest of your comment shows that you don’t understand Sam’s point at all.
What’s so immediately dangerous about the Texas statute is not that it creates a private right of action, but that it uses the private right of action to avoid judicial review of its unconstitutional treatment of abortion. Creating a private cause of action in environmental law doesn’t attempt to change anyone’s substantive rights.
There is a way to challenge constitutional rulings. It requires thorough deliberation on the substance of the law. With respect to abortion, that is happening in other cases, but not with this Texas law. The Texas law is an attempt to go around that process entirely, to take away a constitutional right by using a procedural trick.
Procedural rules were made for good reasons, but procedural puzzles exist to be solved. It’s ridiculous that a few members of the Supreme Court would throw up their hands and say there’s nothing they can do in this case. Problems with procedure suddenly become insurmountable when judges want an excuse to do nothing.
Sch – Since my original comment appears to have been deleted, I stand by my characterization of the left-oriented in our society as intolerant of criticism. I do deeply regret that this seems to have reached even the lovely folks here at BCC.
Loursat – Environmental laws which permit “private attorneys general” to prevent property owners from using their property as they choose do infringe on substantive rights, namely the ancient right to enjoy and use one’s property. You personally may not esteem property rights highly, but they are far more well-grounded in the law than the Supreme Court fabricated right to abortion.
As to Sam’s point about the difficulty of challenging the Texas statute, the structure of the law is not the impossible impediment that Sam makes it out to be. The statute will be challenged in court the very first time someone tries to collect their $10,000. The only thing the Texas law does is prevent a preemptive challenge to the law. But it will never be enforced without a judicial review, which will likely find the statute to be in violation of Casey v. Planned Parenthood.
Sam’s post does raise a valid issue, which is the danger of empowering private individuals to enforce social policy. The concept of private attorneys general is highly problematic in general, regardless of what policy they are enforcing.
JWL, you don’t know what you’re talking about. Your characterization of the law on private rights of action is flat wrong. I’d assume that your comment was deleted because the owners of this website know there’s a danger in allowing misinformation to sit here forever, even if it’s way down in a comment thread.
JWL, You say the left are intolerant of criticism, and yet your comment is published. I follow milenial star, and meridian magazine, to see what fellow members are saying, but neither site will allow me to comment. So I Would say the right is even less tolerant.
Assuming you are a trump voter, can you justify voting for someone who says he will only accept the result of the election if he wins? Is that not clearly undermining democracy, and much of what America stands for?
JWL, I know that you know better than this. There is a substantive difference between giving authority to private parties to enforce a law that you know comports with the Constitution as an enforcement mechanism and giving authority to private parties to enforce a law that you know violates the Constitution to avoid pre-enforcement review. Conflating the two is simultaneously wrong and irresponsible.
I said this post wasn’t about the normative question of whether abortion should be constitutional. Whatever you think, it currently is a protected constitutional right. If a legislature things it should not be, or that it should be constrained, they should pass a law, deal with the risk of a stay on the merits, and argue its case in front of the district, appeals, and Supreme Court. Trying to circumvent that process says that Texas is less serious about its case and more serious (for the various reasons I lay out) in undermining rights.
Moreover, your characterization of needing only one suit to pause the law is very likely incorrect. I’m not a litigator, but I’m pretty sure that, based on the Court’s decision, no court is going to enjoin the law broadly. Because in a case where the government enforces the law, the TRO limits the state’s ability to act; here, each plaintiff is potentially different and it’s not clear to me that a judge can enjoin actions by a party not in front of that judge. So if there is no pre-enforcement review, a nearly infinite number of parties can bring cases—cases that will be expensive to abortion providers even if ultimately the Supreme Court holds that the law is unconstitutional.
Of course, you know this. And I suppose that your opposition to abortion means that you are unconcerned about the extra-judicial undermining of rights. But make no mistake: whatever you think about the Texas legislation’s putative goals, its method will lead to an assault on some right that you feel is important.
I’m just here, late to the party as I do, to let you know that I read this the day it was posted and that it was for me a most useful perspective. Since I had nothing to rant about, I had no impulse to comment. When this happened over a week ago, it ignited a firestorm of people losing their, uh— minds over the threat to available abortion as needed, and that has obscured examination of this dirty tactic. You were right to forbid discussion of abortion. I don’t worry about that as much as some, though I appreciate their passion to fight for what they believe in. But seeing that the Texas legislature’s maneuver is so far unchallenged, is sobering. I feel the weight of meeting this challenge, and it’s heavy and discouraging.
I don’t have much of substance to add, only that I’m grateful that you illuminated this context, and for the comments that expanded my view. Clarity helps me.
Thanks, MDearest; I’m glad that it was helpful in some small way!
I always enjoy reading your posts, Sam. At the risk of unfairly asking you to comment on another case (and if so, please disregard), I would be interested in your opinion of what Trans Union v Ramirez (2021) tells us about the likely future of the dangerous Texas law. State not federal but a similar vigilante scent.