Opinion | Texas Tries to Upend the Legal System With Its Abortion Law

Efforts in red states to pass increasingly restrictive limits on abortions have ramped up in the last few years as the composition of the Supreme Court has made it more likely that those laws will be upheld. But a new law in Texas that’s set to go into effect on Sept. 1 is especially worrisome.

Not only has Texas banned virtually all abortions after the sixth week of pregnancy (a point at which many women do not even know they’re pregnant), it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue their provider to try to stop it, but if you succeed, you’ll be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

All of that would be problematic enough, but enlisting private citizens to enforce the restriction makes it very difficult, procedurally, to challenge the bill’s constitutionality in court. A lawsuit filed in federal court in Austin last week tries to get around those roadblocks. We believe that it should succeed. But if it fails, not only would that leave the most restrictive anti-abortion law in the country impervious to constitutional challenge; it would also encourage other states to follow Texas’s lead not just on abortion, but on every contested question of social policy.

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

In the abstract, allowing citizens to help enforce the law is nothing new. Many states have so-called “citizen suit” or “private attorney general” provisions that allow citizens to help enforce a range of laws and rules governing consumer and environmental protection, to government transparency and more. The federal government authorizes citizens to help bring certain fraud claims on behalf of the United States — and allows those citizens to share in any damages that the government receives. The critical point in both of those contexts is that citizens are supplementing government enforcement.

The Texas law, by contrast, leaves private enforcement as the only mechanism for enforcing the broad restrictions on abortions after the sixth week of pregnancy. It specifically precludes the state’s attorney general or any other state official from initiating enforcement. Under this new law, private enforcement supplants government enforcement rather than supplementing it. If this seems like a strange move, it is. And it appears to be a deeply cynical one, serving no purpose other than to make the abortion ban difficult to challenge in court.

When a state passes an unconstitutional law, the typical way to challenge it is to seek an injunction against the state officer in charge of enforcing the law. But as the U.S. Court of Appeals for the Fifth Circuit, the federal appeals court covering cases from Louisiana, Mississippi and Texas, held in 2001, when the state is not directly involved in enforcing a state law, none of the state’s executive officers are proper defendants to such a lawsuit.

Nor could challengers sue citizens who might in the future try to enforce the abortion restrictions, since there’s no way to prove that those citizens, specifically, will do so. At first blush, then, this law ingeniously insulates itself from challenge, something that would hardly have been necessary if its proponents were more confident that the six-week abortion ban is itself constitutional. But that’s where last week’s lawsuit comes in.

In a wide-ranging 49-page complaint, an array of abortion providers and abortion rights groups in Texas have sued Texas state court judges, Texas state court clerks and an array of state health officials in challenging the new law. As the lawsuit notes, even if, under the law, state enforcement proceedings can be initiated only by citizens, those proceedings can’t actually accomplish anything without the participation of judges, clerks and health officials. Thus, although these potential defendants aren’t tasked with enforcing the law, and bear no responsibility for its enactment, the law can’t be enforced without them.

There is precedent for this approach. In 1948, for instance, the U.S. Supreme Court struck down the use of racially restrictive covenants in real estate contracts by holding that, even though the contracts were agreements between private parties, they couldn’t be enforced without the cooperation of state court judges, which would itself violate the 14th Amendment’s guarantee of equal protection for all under the law. The same is true here — the citizens who would enforce the law are not themselves government actors, but the courts that would hear their suits are. It’s certainly an unusual way to challenge a state law — but it’s one that, in our view, is entirely appropriate.

But imagine if this challenge fails on procedural grounds. That would not just make it impossible for anyone to challenge one of the most restrictive abortion laws in the country. It would also set an ominous precedent for turning citizens against each other on whatever contentious issue their state legislature chose to insulate from ordinary constitutional review.

It’s not hard to see how such a fundamental inversion of how our constitutional system works would have damaging consequences both practically and legally that go far beyond the specific scope of abortion restriction in the nation’s second-largest state.

Later this year, the Supreme Court is scheduled to hear what’s likely to be its most important abortion case since 1992, when it considers Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. But the legal dispute that began in Texas last week is, in our view, the far more important one. Not only is the Texas ban a frontal assault on Roe v. Wade, it’s an assault on our legal system and on the idea that law enforcement is up to the government, not our neighbors.

Laurence H. Tribe is an emeritus professor of constitutional law at Harvard Law School; Stephen I. Vladeck is a professor at the University of Texas School of Law in Austin.

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