Texas has a new law allowing private enforcement penalties against people who violate or assist someone who has an abortion. This law looks way to open ended to me and appears to be solely punitive rather than seeking to prevent abortions.
The measure -- signed into law by Republican Gov. Greg Abbott in May -- prohibits abortion providers from conducting abortions once a fetal heartbeat is detected.
But among those restrictions, the Texas bill stands out for the novel approach it takes in curtailing the procedure.
Rather than imposing a criminal or regulatory punishment for those who conduct abortions after the point in the pregnancy, the state law created a so-called "private right of action" to enforce the restriction. Essentially, the legislature deputized private citizens to bring civil litigation -- with the threat of $10,000 or more in damages -- against providers or even anyone who helped a woman access an abortion after six weeks.
Let me get this out of the way at the beginning of my reply: My analysis is critical of the law for several reasons, none of which are that it is an attempt to restrict abortion. There is nothing wrong with being pro-life. There is nothing wrong with being opposed to abortion, even all abortion. The things wrong with this law actually have nothing to do with abortion.
This law is a cynical attempt to undermine the rule of law and produce a chilling effect by creating a legal regime that
cannot be challenged until the law is violated, but which people will be wary of violating because of the cost.
Basically, Texas has outsourced all enforcement of this law to private citizens for the sole purpose of avoiding preemptive restraining orders against the law itself. Because no state official is responsible for enforcing the law, there is no one to sue to stop the law, unless and until an abortion provider is actually sued under it. Texas hopes that, to avoid potential costly lawsuits, abortion providers will simply elect to follow the restriction. So long as they do, no one can challenge the law.
But, under current precedent, the law is undoubtedly unconstitutional. Once someone is sued for performing an abortion, it will become the purview of the courts to enforce the law, and at that point, the law will be challenged by whichever provider loses, and that challenge will be allowed, thanks to a very important precedent called
Shelley v. Kraemer. In that case, SCOTUS ruled that racially restrictive housing covenants could not be enforced, because even though private citizens were free to agree to them and abide by them, no one could be forced to abide by them by the courts, because the courts were state actors, just like other state officials. So the minute a court is asked to step in and take part in this sham, state action is in play, and the law will be overturned.
So Texas is really banking on one of two things: First, either abortion providers are too scared to perform the abortions, and the law is never challenged, or second, by the time someone does in fact put himself at risk in order to get the law challenged, the legal landscape will have changed thanks to the strong conservative supermajority on SCOTUS.
I cannot stress just how despicably cynical this is. Texas is using a huckster's trick to use the law itself in order to undermine the way the law is actually supposed to work. It is attempting to unconstitutionally restrict the rights of its citizens while simultaneously insulating itself from any attempts to remedy those restrictions. Regardless of how you feel about abortion itself, if you are a fan of things like the rule of law, due process, etc., you should be strongly opposed to this law.
