The unusual steps Texas took to protect its new abortion restrictions from being blocked right out of the gate mark a new legal front in culture wars and could serve as a roadmap for states considering similar laws.
In enacting its ban on abortion after six weeks of pregnancy, Texas left it to private parties to enforce the new law. That provision makes it difficult if not impossible to get a court to review the lawfulness of the restrictions before they’re enforced, law scholars say.
It’s a maneuver that has already piqued the interest of other states. Nebraska Gov. Pete Ricketts (R) signaled on Twitter he’s interested in passing a similar law and Florida’s Senate president said Thursday he’s open to doing something as well.
“I’m not aware of any statute on any subject that sought to combine these features and weaponize them the way the Texas statute did, and it’s unlikely to be confined to Texas or the issue of abortion,” said Jonathan Adler, a law professor at Case Western Reserve University School of Law.
If Texas succeeds, it could set off another contentious battle over social issues as Democratically controlled states take the same approach on gun ownership or union organizing, lawyers say.
The Supreme Court in a 5-4 ruling Wednesday cited procedural obstacles in rejecting a request from abortion providers to put the law on hold. Because of the law’s enforcement protocol, the court’s majority said the providers hadn’t shown that the people they sued, which included a state judge, court clerk, and anti-abortion pastor, will enforce the law in a way that would allow the court to intervene.
Government officials are barred from enforcing the Texas law. Enforcement relies instead on private citizens to bring a civil lawsuit against an abortion clinic or anyone who helps a woman get an abortion after six weeks. If successful, that private citizen is entitled to a minimum of $10,000 in damages per procedure.
Legal scholars are watching to see if the strategy catches on. While Republican-led states could ban any criticism of a state governor, Democratic-led states could use it to do things like restrict gun sales or stop employers from banning unions from organizing on company property.
“The Supreme Court just told unions that employers have a right against their presence on the property for union organizing,” Elizabeth Sepper, a law professor at the University of Texas at Austin School of Law, said of the court’s June ruling in Cedar Point Nursery v. Hassid.
“What if California said, ‘If you exclude a union from your property, we’re not going to do anything, the state won’t penalize you, but a private party or any private party can sue you for each violation $10,000 per person involved in excluding a union.”
It’s a strategy that both red and blue states could use to their advantage.
“It’s a deeply cynical and constitutionally damaging move, but there’s no reason that what’s good for the goose isn’t good for the gander,” Sepper said.
Other States Watching
Already, the Texas group that helped craft the law is hearing from other states interested in drafting similar abortion legislation. John Seago, the legislative director of Texas Right to Life, said his organization is directly working with three states.
“I think in the next two weeks you’re going to see a pretty good movement of a lot of these states,” Seago said. Even states that have heartbeat bills enjoined currently might try to amend them to achieve the same success as Texas, he said.
While Texas Right to Life is pleased with the result, Seago said he doesn’t want to “over-interpret” what the Supreme Court did, adding there are still a lot of steps and obstacles to the law being fully upheld.
When it comes to the same strategy being used by Democrats to achieve their own policy ends, Seago said the bill didn’t invent civil liability.
“This model of enforcement has obviously proven to be really promising, so this is definitely something that’s going to be explored on either side of the aisle,” he said.
Whether laws like this will actually achieve a state’s desired policy goal remains to be seen.
“The unknown issue here is the extent to which the risk of civil lawsuits deters people from engaging in the conduct as opposed to engaging in the conduct and then litigating defensively in state court,” said Howard Wasserman, a professor of law at Florida International University College of Law.
“Right now it looks like the reproductive rights community is going to comply with the law and just avoid getting sued all together.”
The Texas law takes advantage of sovereign immunity, a rule of law in the U.S. that limits the circumstances under which you can sue the government, specifically state governments.
The only exception is if you sue the officer or official charged with enforcing the law. The way the Texas law gets around that is by preventing state officials from enforcing it, said Mary Ziegler, a professor at Florida State University College of Law, who wrote a book on the history of abortion law.
Usually if you’re going to sue, you have to have skin in the game but “here, you really don’t,” she said.
“That kind of precedent can be pretty explosive in lots of areas, not just abortion,” Ziegler said.
‘Galling and Audacious’
Not all legal scholars are sure other states will try to do what Texas did.
Outside of other Republican states looking to do the same thing with abortion, Leah Litman, a professor at the University of Michigan Law School, said she’s skeptical that other legislatures would be as “unprincipled or hostile to the rule of law.”
“It’s hard to overstate just how galling and audacious this procedural mechanism was,” Litman said. “The idea that you are forcing people to violate laws and be subject to lawsuits in order to challenge them is just antithetical to so much of what we think due process and the rule of law requires.”
A similar law allowing people to sue someone for having an unlicensed handgun, for example, also might not have met the same response from the Supreme Court, Litman said.
But some legal scholars argue blue states have an obligation to take this Texas-style approach.
“We can’t have a structure that allows red states to impede their citizens’ constitutional rights when they don’t like them but won’t allow the same in blue states,” Sepper said. “State legislatures in blue states need to be aware of this, that they may have obligations to do this because it’ll set up, hopefully, a Supreme Court case that says this isn’t a plausible way to legislate.”
Several federal appeals courts are now more conservative thanks to appointments made by former President Donald Trump, and that’s likely to further embolden Republican-led states to pass overly restrictive abortion laws, law scholars say.
Trump was able to flip three circuit courts—the Second, Third, and Eleventh—from a Democratic-appointee majority to a Republican-appointee majority. And he deepened the Republican-appointee lean of other circuits, including the Fifth, Seventh, and Eighth. Biden has an opportunity to flip the Second Circuit back, but most of his available circuit vacancies are replacing Democratic appointees.
The Supreme Court has already agreed to hear Mississippi’s appeal to save its ban on abortion after 15 weeks of pregnancy. The case challenges the court’s precedents in Roe v. Wade and Planned Parenthood v. Casey, the seminal cases that gave women the right to an abortion. But attorneys say the Texas law is a different beast.
“Unless or until Roe or Casey are modified or overturned, a woman has a right to terminate her pregnancy and the law was written to chill the exercise of that right,” Adler said.
“It wasn’t written primarily to get the courts to reconsider the existence of the right. It was written to chill the exercise.”