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.