The new Texas law effectively banning nearly all abortions in the state relies on private citizens to enforce it, the highest-profile example of a growing push by Republicans to give supporters broad power to sue over issues important to their base.
A Tennessee law allows any student, teacher or employee to sue if they are required to share a bathroom with a trans person, and a Florida statute allows students to sue if required to play with a trans teammate. Both were passed earlier this year.
Such laws encourage legal vigilantism and stoke social, cultural and racial conflict, David Noll, an associate dean at Rutgers Law School who studies legal institutions and procedure, concluded in a recent paper he co-wrote.
In an interview, Noll said the Texas abortion law and recent proposals in that vein “look very similar” in some ways to other laws using private enforcement, a practice that dates back at least to the 19th century and statutes including the Fugitive Slave Act. But in recent decades, these laws, including the Clean Air Act, have been crafted with the intention of helping those facing discrimination at work or pollution in their community.
The right to sue is usually limited to “someone who is affected in an intensely personal way,” Noll said, but “the way that these laws are understanding rights and the political functions that they’re serving are just completely different than really any other private enforcement regime that we’ve looked at.”
The Texas abortion law allows private individuals to sue anyone who performs an abortion after six weeks, or anyone who “aids and abets it.” Plaintiffs don’t have to have any direct connection to have standing to sue, something typically required by tort law. Nonetheless, they can collect $10,000 and legal fees if they win. Defendants who win, on the other hand, can’t recover legal fees. Nor can they sue state officials, who have no enforcement role under the law.
The law’s backers have said it was designed to make it difficult to block in court. The Supreme Court, citing “complex and novel” procedural challenges, declined to prevent the law from going into effect, though the majority said the ruling was “not based on any conclusion about the constitutionality of Texas’ law.” In her dissent, Supreme Court Justice Sonia Sotomayor said the court’s “failure to act rewards tactics designed to avoid judicial review.”
“It is unlike any law with which I am familiar,” said Louise Melling, deputy legal director of the ACLU, which helped bring the case against it. Melling said the standing and legal fee provisions, among others, show “all the procedural elements are tipped in favor of somebody who wants to be, quote, enforcing this law.”
John Seago, the legislative director of Texas Right to Life, said the organization has been including civil liability in legislative drafts for nearly a decade, something he said will be “critical to making sure these laws are actually enforced.” He pointed to a letter last year signed by a coalition of prosecutors and district attorneys who said they would not enforce laws that criminalize abortion. The best comparison, he said, is to whistleblower laws allowing anyone to sue to protect the state interest.
Seago called references to legal vigilantism and bounty hunting “overblown rhetoric.” Defendants can assert constitutional claims if they’re sued, he said.
“Our judicial system is really going to be the filter,” Seago said.
How conservatives learned to love citizen lawsuits
When Congress passed the Civil Rights Act of 1964, liberals initially wanted to create a federal agency to enforce employment discrimination laws, says Sean Farhang, a professor at the University of California, Berkeley’s law school who studies the role of courts in regulatory implementation. Conservatives, worried about bureaucratic state-building, resisted. Farhang said private enforcement was a compromise that liberals ultimately came to see as a gift.
Jefferson Decker, a Rutgers professor who wrote a book on the conservative legal movement, said legislators had to reckon with the tricky question of who could sue on behalf of nature, prompting them to include private enforcement in some environmental protection laws, such as the Endangered Species Act. “When I teach some of these issues, I jokingly call this the Lorax problem,” he said, referring to the children’s classic by Dr. Seuss. “Who speaks for the trees?”
Conservatives long criticized such litigation, which often targeted businesses. But they paid attention to the track record, with the legal fees plaintiffs were able to recover spurring lawyers specializing in environmental or employment law.
“The conservative legal movement has for decades studied the successes of left and liberal legal movements very carefully both to try to see how they can play defense, right, but also how they can play offense,” Decker said. “It is a place where they have clearly, at times, managed to learn and come up with … novel ways of using existing legal strategies in ways that have furthered their agenda.”
In a paper published in the UC Irvine Law Review earlier this year, Farhang and a co-author found Republican members of Congress were about half as likely as Democrats to support bills with private enforcement regimes until 2010, when Republican support “exploded,” reaching parity with Democrats between 2015 and 2018.
The paper didn’t study state legislatures but found the growth in congressional Republican support for such bills were on subjects including abortion, immigration, taxes, guns and religion.
“The very new thing is … they’re replicating what liberals have done, but they have their own set of problems and concerns,” he said. State legislators, he said, are now doing the same.
Already, elected officials in several states have said they are looking at abortion laws modeled on the Texas statute. Noll also points to state bills authorizing parents to sue in connection with efforts to restrict the teaching of critical race theory.
He and other experts warn the private enforcement mechanism will spill into other areas.
“We could see them with voting,” Melling said. “We could see them with gun rights.”
On Thursday, while announcing the U.S. Department of Justice would sue Texas to block the abortion law, U.S. Attorney General Merrick Garland warned of the far-reaching ramifications of allowing states to use private enforcement to infringe on constitutional rights.
“This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear,” he said.
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