In May, Texas passed a law ending access to abortions after six weeks into pregnancy. This restrictive ban shocked many people from its first appearance, given its discrepancy with Supreme Court precedent. The 1973 case of Roe v. Wade ruled that pregnant women can choose whether to have an abortion without excessive government restriction. But this Texas law avoids the question of constitutionality by relying on an unusual mechanism: citizen enforcement.
Under the law, private citizens have the authority to sue all those who “aid and abet” an abortion procedure after six weeks. This means that doctors, medical organizations, financers, and even Uber drivers risk becoming a defendant in a private lawsuit if they facilitate an abortion. The law further incentivizes citizens to sue by offering damages of $10,000 as well as coverage of legal fees. However, defendants receive no benefits or coverage if they win.
Texas’s law is enforceable through private citizens who are effectively shielded from costs. With comparatively limited means to challenge the law and threats of legal action against anyone involved, access to abortions becomes effectively blocked. The Texas legislature places the implementation of the law in the hands of the citizens, steering clear of judicial review by privatizing its enforcement.
On November 1, during the oral arguments of United States v. Texas, several Supreme Court justices acknowledged the evasive mechanisms of Texas’s abortion law. Chief Justice John Roberts identified the law’s structure as “not only unusual, but unprecedented” in that the “desired consequences appear to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.” Said “insulation” could stimulate the passing of similar policies that operate through citizen enforcement. Justice Brett Kavanaugh drew attention to the potential for Texas’s abortion law to “become the model for suppression of other constitutional rights,” like free speech or the right to bear arms.
Already, other states are utilizing this legal tactic: in Tennessee, citizens are permitted to sue public schools for psychological or physical harm when they allow for shared bathrooms or changing rooms with those of the opposite sex. And in Florida, an amendment to a school spending bill allows parents to sue districts that allow transgender girls to participate in girls sports. Citizen lawsuit provisions enable states to dodge judicial review and, in action, fuel conflict in communities or policy issues already riddled with controversy.
Much skepticism of citizen enforcement among the Supreme Court justices stems from how Texas’s abortion law threatens established principles of judicial review, as well as federal supremacy protected under the Constitution. But this particular law also undermines the very definition of constitutional rights, inviting legislatures to erode the protections and liberties guaranteed to the American people as interpreted by the judiciary.